Before: GARLAND, Chief Judge, and HENDERSON, ROGERS, TATEL, BROWN, GRIFFITH
and KAVANAUGH, Circuit Judges. Opinion for the court filed by Circuit Judge
HENDERSON. Concurring opinion filed by Circuit Judge HENDERSON. Opinion
concurring in the judgment in part and dissenting filed by Circuit Judge
ROGERS. Opinion concurring in the judgment in part and dissenting in part
filed by Circuit Judge BROWN. Opinion concurring in the judgment in part and
dissenting in part filed by Circuit Judge KAVANAUGH.
[*4]

Michel Paradis, Counsel, Office of the Chief Defense Counsel, argued the
cause for the petitioner. Mary R. McCormick and Todd E. Pierce, Counsel,
were on brief.

David S. Weissbrodt and William J. Aceves were on brief for amicus curiae
International Law Scholars in support of the petitioner.

Agnieszka Fryszman was on brief for amicus curiae National Institute of
Military Justice in support of the petitioner.

McKenzie A. Livingston was on brief for amici curiae Robert D. Steele and
other Former Members of the Intelligence Community in support of the
petitioner.

John S. Summers and Michael J. Newman were on brief for amici curiae
Professors David Glazier and Gary Solis in support of the petitioner.

Sarah H. Paoletti was on brief for amici curiae Historians, Political
Scientists and Constitutional Law Scholars in support of the petitioner.

Jeffrey T. Renz was on brief for amici curiaeFirst Amendment Scholars and
Historians [*5] and the Montana Pardon Project in support of the petitioner.

Elizabeth B. Wydra was on brief for amicus curiae Constitutional
Accountability Center in support of the petitioner.

Ian H. Gershengorn, Attorney, U.S. Department of Justice, argued the cause
for the respondent. Steven M. Dunne, Chief Attorney, and John F. De Pue,
Attorney, were on brief. Jeffrey M. Smith, Trial Attorney, U.S. Department
of Justice, and Francis A. Gilligan and Edward S. White, Attorneys, Office
of Military Commissions, entered appearances.

James A. Schoettler Jr. was on brief for amici curiae Former Government
Officials, Former Military Lawyers and Scholars of National Security Law in
support of respondent.

Cory L. Andrews and Richard A. Samp were on brief for amici curiae
Washington Legal Foundation et al. in support of the respondent.

KAREN LECRAFT HENDERSON, Circuit Judge:

Ali Hamza Ahmad Suliman al Bahlul (Bahlul) served as a personal assistant
to Osama bin Laden, produced propaganda videos for al Qaeda and assisted
with preparations for the attacks of September 11, 2001 that killed
thousands of Americans. Three months after 9/11, Bahlul was captured in
Pakistan and transferred to the United States Naval Base at Guantanamo Bay,
Cuba. Military prosecutors charged him with three crimes: conspiracy to
commit war crimes, providing material support for terrorism and solicitation
[**2] of others to commit war crimes. A military commission convicted him of all
three crimes and sentenced him to life imprisonment. The United States Court
of Military Commission Review (CMCR) affirmed his conviction and sentence.
Bahlul appeals. For the reasons that follow, we reject Bahlul's ex postfacto challenge to his conspiracy conviction and remand that conviction to
the original panel of this Court for it to dispose of several remaining
issues. In addition, we vacate his material support and solicitation
convictions.

I. Background

Bahlul is a native of Yemen. In the late 1990s, he traveled to Afghanistan
to join al Qaeda. He completed military-like training while staying at an al
Qaeda guesthouse and eventually met and pledged an oath of loyalty ("bayat")
to bin Laden. Bin Laden assigned Bahlul to work in al Qaeda's media office.

On October 12, 2000, al Qaeda suicide bombers attacked the U.S.S. Cole,
killing 17 American servicemen and wounding 39 others. Bin Laden later
instructed Bahlul to create a video celebrating the attack for use as a
recruiting tool. The video Bahlul produced (and bin Laden edited) includes
[*6] footage of the attack, calls for jihad against the United States and
propaganda blaming "Western infidels" and complicit Middle Eastern regimes
for Muslim suffering. Bahlul considered it one of the best propaganda videos
al Qaeda had produced and it has been translated into several languages and
widely distributed.

Bin Laden then appointed Bahlul as his personal assistant and secretary
for public relations. Bahlul arranged the loyalty oaths of two of the 9/11
hijackers, Mohamed Atta and Ziad al Jarrah, and prepared their "martyr
wills"—propaganda declarations documenting al Qaeda's role in the attacks.
Bahlul claims he sought to participate in the 9/11 attacks himself but bin
Laden refused because he considered his media man too important to lose. In
the days preceding 9/11, Bahlul assembled al Qaeda's media equipment and
evacuated al Qaeda's Kandahar headquarters with bin Laden and other senior
al Qaeda leaders. They traveled to a remote region of Afghanistan where, on
September 11, 2001, they heard reports of the day's attacks via a radio
operated by Bahlul.
Bin Laden subsequently asked Bahlul to research the economic effects of the
attacks and report his findings.

In the following weeks, Bahlul fled to Pakistan. He was captured there in
December 2001 and turned over to U.S. forces. In 2002, he was transferred to
the U.S. Naval Base at Guantanamo Bay, Cuba, where he has since been
detained as an enemy combatant pursuant to the 2001 Authorization for Use of
Military Force (AUMF). See Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224;
Hamdi v. Rumsfeld, 542 U.S. 507, 518, 521 (2004) (plurality). Two months
after 9/11, President Bush invoked the AUMF and Article 21 of the Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 821 (hereinafter "section
821"), to establish military commissions to try "member[s] of ... al Qaida"
and others who "engaged in, aided or abetted, or conspired to commit, acts
of international terrorism, or acts in preparation therefor." See Detention,
Treatment, and Trial of [**3] Certain Non-Citizens in the War Against Terrorism,
66 Fed.Reg. 57,833 (Nov. 13, 2001). In 2003, the President designated Bahlul
eligible for trial by military commission and in 2004 military prosecutors
charged him with conspiracy to commit war crimes.

Bahlul's prosecution was stayed pending the outcome of another detainee's
challenge to the lawfulness of his trial by military commission. In Hamdanv. Rumsfeld, the United States Supreme Court held that the military
commission procedures then in place contravened certain constraints imposed
by the UCMJ and the four Geneva Conventions signed in 1949. 548 U.S. 557,
613-35 (2006). In response to the Hamdan decision, the Congress enacted the
Military Commissions Act of 2006 (2006 MCA), Pub. L. No. 109-336,
120 Stat. 2600, which amended the statutory procedures governing military
commissions to cure the flaws identified in Hamdan. The 2006 MCA
specifically enumerated 30 war
crimes triable by military commission, see10 U.S.C. §§ 950t-950v
(2006),[fn1] and conferred jurisdiction on military commissions to try "any
offense made punishable by this chapter or the law of war when committed by
an alien unlawful [*7] enemy combatant before, on, or after September 11, 2001,"
id. § 948d(a).

The Supreme Court has long recognized that unlawful enemy combatants may
be prosecuted by military commission for their war crimes. See Hamdan,
548 U.S. at 592-93; Hamdi, 542 U.S. at 518; In re Yamashita, 327 U.S. 1,
7-8, 11 (1946); Ex parte Quirin, 317 U.S. 1, 28, 31 (1942). There are three
traditional bases for military commission jurisdiction: military government,
martial law and the law of war. See Hamdan, 548 U.S. at 595-98 (plurality
opinion); see also id. at 683 (Thomas, J., dissenting). First, military
commissions may try ordinary crimes—e.g., manslaughter or robbery — and
violations of military orders committed by both soldiers and civilians in
territories under U.S. military government. Id. at 595-96. Second, military
commissions may try ordinary crimes and violations of military orders
committed by soldiers and civilians in territory under martial law — as much
of our country was during the Civil War. See id. at 595; WILLIAM WINTHROP,
MILITARY LAW AND PRECEDENTS 832-34 (rev. 2d ed. 1920). Third, and "utterly
different" from the first two categories, military commissions may try
offenses against the law of war. Hamdan, 548 U.S. at 596 (plurality opinion)
(citation omitted). It is undisputed that the commission that tried Bahlul
is of the third type: a law-of-war military commission.
A military commission convened pursuant to the 2006 MCA must be composed of
at least five "members," who are qualified active duty officers of the armed
forces and play a role similar to a petit jury. 10 U.S.C. §§ 948i, 948m. A
military judge presides over the trial. Id. § 948j.

In 2008, military prosecutors amended the charges against Bahlul to allege
three of the offenses enumerated in the 2006 MCA based on the conduct
summarized above" conspiracy to commit war crimes, providing material
support for terrorism and solicitation of others to commit war crimes. Seeid. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The conspiracy and
solicitation charges alleged seven object crimes proscribed by the 2006 MCA:
murder of protected persons, attacking civilians, [**4] attacking civilian
objects, murder in violation of the law of war, destruction of property in
violation of the law of war, terrorism and providing material support for
terrorism. See id. § 950v(b)(1)-(3), (15)-(16), (24)-(25). Bahlul admitted
all of the factual allegations against him, with the exception of the
allegation that he had armed himself with a suicide belt to protect bin
Laden. He nevertheless pleaded not guilty to the charged offenses because he
denied the legitimacy of the military commission and sought to absent
himself from the proceedings as a boycott. He objected to representation by
appointed defense counsel and expressed a desire to proceed pro se, although
his attempts to absent himself from the proceedings at times complicated
matters and forced defense counsel to stand in for Bahlul and carry out his
instructions not to present a defense. Bahlul waived all pretrial motions,
asked no questions during voir dire, made no objections to prosecution
evidence, presented no defense and declined to make opening and closing
arguments.

The military commission convicted Bahlul of all three offenses. Using a
detailed findings worksheet, it found that Bahlul conspired to commit and
solicited each of the seven alleged object offenses and that Bahlul
committed ten of the eleven alleged overt acts. See Petitioner's Appendix
(App.) 132-33.[*8][fn2] The commission sentenced him to life imprisonment and
the convening authority, Susan J.
Crawford,[fn3] approved the findings and sentence. The CMCR affirmed
Bahlul's conviction and sentence in a 112-page opinion. See United States v.Bahlul, 820 F.Supp.2d 1141 (2011). Bahlul then appealed to this Court.

While Bahlul's appeal was pending, this Court held that the 2006 MCA "does
not authorize retroactive prosecution for conduct committed before enactment
of that Act unless the conduct was already prohibited under existing U.S.
law as a war crime triable by military commission." Hamdan v. United States(Hamdan II), 696 F.3d 1238, 1248 (D.C. Cir. 2012) (emphasis in original).
The Court declared that providing material support for terrorism — the only
charge at issue in that appeal — was not a pre-existing war crime triable by
military commission; it therefore vacated Hamdan's conviction on that
offense. Id. at 1248-53. The Government subsequently conceded that HamdanII's reasoning required vacatur of all three of Bahlul's convictions. Based
on that concession, a panel of this Court vacated the convictions. Order,
Bahlul v. United States, No. 11-1324, [2013 BL 22590], 2013 WL 297726 (D.C. Cir. Jan. 25,
2013). We subsequently granted the Government's petition for rehearing enbanc.

II. Standard of Review

Bahlul argues that the 2006 MCA must be construed to make triable by
military commission only those crimes that were recognized under the
international law of war when committed. He further contends that, if the
2006 MCA authorizes retroactive prosecution of new law-of-war offenses by
military commission, his convictions violate the Ex Post Facto Clause.
Bahlul made neither of these arguments before the military commission.
[*9]

"'No procedural principle is more familiar to this Court [**5] than that a
constitutional right,' or a right of any other sort, 'may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to determine it.'" UnitedStates v. Olano, 507 U.S. 725, 731 (1993) (quoting Yakus v. United States,
321 U.S. 414, 444 (1944)). This fundamental principle of appellate review
generally bars a party who failed to preserve an argument in a lower
tribunal from raising it on appeal absent plain error or exceptional
circumstances. See United States v. Atkinson, 297 U.S. 157, 159 (1936);
Salazar ex rel. Salazar v. Dist. of Columbia, 602 F.3d 431, 437 (D.C. Cir.
2010).

To preserve error for appellate review, an appellant must interpose a
"timely" objection, United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.
2005), and "state the specific ground for [the] objection," United States v.Boyd, 54 F.3d 868, 872 (D.C. Cir. 1995). Although he need not "cite the
particular case that supports his position," United States v. Rashad,
396 F.3d 398, 401 (D.C. Cir. 2005), he must state the ground for his
objection "with sufficient precision to indicate distinctly [his] thesis,"
Miller v. Avirom, 384 F.2d 319, 322 (D.C. Cir. 1967). Thus, "[a]n objection
is not properly raised
if it is couched in terms too general to have alerted the trial court to the
substance of the petitioner's point." United States v. Breedlove,
204 F.3d 267, 270 (D.C. Cir. 2000); see also Noonan v. Caledonia Gold Min.Co., 121 U.S. 393, 400 (1887) ("The rule is universal, that where an
objection is so general as not to indicate the specific grounds upon which
it is made, it is unavailing on appeal, unless it be of such a character
that it could not have been obviated at the trial.").

The contemporaneous-objection rule is not mere "obeisance to ritual."
Miller, 384 F.2d at 322. It serves two purposes. First, the rule promotes
judicial efficiency by giving the trial tribunal the opportunity to quickly
and efficiently resolve errors that would otherwise require burdensome and
unnecessary appellate review and remand. See Puckett v. United States,
556 U.S. 129, 134 (2009). Second, the rule discourages the intentional
withholding of an objection by a party to be raised on appeal only if he
loses at trial. See id.; see also Wainwright v. Sykes, 433 U.S. 72, 89
(1977); Hormel v. Helvering, 312 U.S. 552, 556 (1941); United States v.Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940) (citing Crumpton v.United States, 138 U.S. 361, 364 (1891)).

To mitigate the sometimes harsh results of the forfeiture rule in criminal
cases, the Congress authorizes the court of appeals to exercise its
discretion to notice and correct a certain type of forfeited error: "plain
error." FED.R.CRIM.P. 52(b); see United States v. Young, 470 U.S. 1, 15
(1985); see also10 U.S.C. § 950a(a) (Supp. III 2010) (Military Commissions
Act of 2009 review provision specifying that only errors that "materially
prejudice[] the substantial rights
of the accused" may be corrected).[fn4] A plain error is "[1] an 'error' [2]
that is 'plain' and [3] that 'affect[s] substantial [*10] rights.'" Olano,
507 U.S. at 732 (quoting FED.R.CRIM.P. 52(b)) (final alteration in
original). "If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of
judicial proceedings." Johnson v. United States, 520 U.S. 461, 467 (1997)
(quotation marks and brackets omitted). Plain-error review, however, is
"highly circumscribed." [**6]United States v. Brinson-Scott, 714 F.3d 616, 625
(D.C. Cir. 2013); see also Puckett, 556 U.S. at 134 ("Meeting all four
prongs is difficult, as it should be." (quotation marks omitted)); Young,
470 U.S. at 15 ("[T]he plain-error exception to the
contemporaneous-objection rule is to be used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise result."
(quotation marks omitted)). "There is good reason for this; anyone familiar
with the work of courts understands that errors are a constant in the trial
process, that most do not much matter, and that a reflexive inclination by
appellate courts to reverse because of unpreserved error would be fatal" to
the policies furthered by the contemporaneous-objection rule. Puckett,
556 U.S. at 134 (quotation marks omitted). We therefore must guard against
"unwarranted extension of this exacting definition of plain error." Young,
470 U.S. at 15.[fn5]

Applying these principles here, we conclude that Bahlul forfeited the
arguments he now raises. He flatly refused to participate in the military
commission proceedings and instructed his trial counsel not to present a
substantive defense. Although he objected to the commission's authority to
try him, his objection was couched entirely in political and religious
terms. He disclaimed guilt and contended that "what [he] did was not a
crime." Trial Tr. 175. But context makes clear that Bahlul argued that his
acts were not criminal because they were inspired by religious fervor. Seeid. at 175-76. After claiming that the United States had "put on the side[]
the meaningless American laws" and "legislated new laws" for "the planet
Earth," he explained that he "believe[s] that no one has the right in the
land to set laws for the people, the right of legislating laws[] is
absolutely to Allah, the All Mighty." Id. at 23-24. Bahlul did ask a "legal
question" about whether the "law here by you stems from the action, before
action, or post action," id. at 104, but the military judge could not
ascertain what Bahlul was asking and Bahlul did not elaborate. Bahlul's
objection to the commission's authority was unquestionably "too general to
have alerted the trial court to the substance of [his] point." United Statesv. Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003) (Roberts, J.)
(quotation marks omitted); Breedlove, 204 F.3d at 270. Accordingly, we
review his convictions for plain error.[*11][fn6]

Two of our colleagues contend that, by applying only plain-error review,
we have provided insufficient clarity in this case. They argue that the
Executive Branch's need for guidance in this area warrants de novo review.
Brown Op. 1, 24; Kavanaugh Op. 34. But the Government itself has asked that
we apply plain-error review. E.B. Br. of the United States 63. Indeed, at
oral argument, it insisted that we do so, notwithstanding the potential lack
of "clarity" that such review might entail. Oral Arg. Tr. 45.

III. Statutory Analysis

As noted, Hamdan II held that the 2006 MCA "does not authorize retroactive
prosecution for conduct committed before enactment of that Act unless the
conduct was already prohibited under existing U.S. law as a war crime
triable by military commission." 696 F.3d at 1248. Because we conclude, for
the reasons that follow, [**7] that the 2006 MCA is unambiguous in its intent to
authorize retroactive prosecution for the crimes enumerated in the statute —
regardless of their pre-existing law-of-war status — we now overrule HamdanII's statutory holding. See United States v. Burwell, 690 F.3d 500, 504
(D.C. Cir. 2012) (en banc); Critical Mass Energy Project v. NRC,
975 F.2d 871, 876 (D.C. Cir. 1992) (en banc);
Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir.
1988) (en banc).[*12][fn7]

A. The 2006 MCA is Unambiguous

The 2006 MCA confers jurisdiction on military commissions to try "any
offense made punishable by this chapter or the law of war when committed by
an alien unlawful enemy combatant before, on, or after September 11, 2001."
10 U.S.C. § 948d(a) (2006) (emphases added). "Any," in this context, means
"all." See OXFORD ENGLISH DICTIONARY 539 (2d ed. 1989) ("indifference as to
the particular one or ones that may be selected"); see also Dep't of Housing& Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002); United States v. Gonzales,
520 U.S. 1, 5 (1997). The "offense[s] made punishable by this chapter"
include the charges of which Bahlul was convicted: conspiracy to commit war
crimes, providing material support for terrorism and solicitation of others
to commit war crimes. 10 U.S.C. §§ 950u, 950v(b)(25), 950v(b)(28) (2006).
There could hardly be a clearer statement of the Congress's intent to confer
jurisdiction on military commissions to try the enumerated crimes regardless
whether they occurred "before, on, or after September 11, 2001." And the
provisions of the statute enumerating the crimes triable thereunder
expressly "do not preclude trial for crimes that occurred before the date of
the enactment of this chapter." 10 U.S.C. § 950p(b) (2006). For good reason:
If it were otherwise, section 948d's conferral of jurisdiction to prosecute
the enumerated crimes occurring on or before September 11, 2001 would be
inoperative.
See Corley v. United States, 556 U.S. 303, 314 (2009) ("A statute should be
construed so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant." (quotation
marks, brackets and ellipsis omitted)). Although we presume that statutes
apply only prospectively "absent clear congressional intent" to the
contrary, that presumption is overcome by the clear language of the 2006
MCA. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994); see also Johnsonv. United States, 529 U.S. 694, 701 (2000) (clear statement of intent
overcomes presumption against retroactivity); Martin v. Hadix, 527 U.S. 343,
353-54 (1999) (" 'unambiguous directive' or 'express command'" overcomes
presumption against retroactivity); Reynolds v. M'Arthur,
27 U.S. (2 Pet.) 417, 434 (1829) (Marshall, C.J.) ("[L]aws by which human
action is to be regulated ... are never to be construed retrospectively
unless the language of the act shall render such construction
indispensable.").

Review of the inter-branch dialogue which brought about the 2006 MCA
confirms the Congress's intent to apply all of the statute's enumerated
crimes retroactively. See Boumediene v. Bush, 553 U.S. 723, 738 (2008)
("acknowledg[ing] ... the litigation history that prompted Congress to enact
the MCA"). In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court
considered the President's order that a military commission try Hamdan, a
Guantanamo detainee, for one of the very crimes of which Bahlul [**8] was
convicted: conspiracy to commit war crimes. Hamdan challenged the
President's authority to convene the military commission by petitioning for
habeas corpus relief and the Supreme Court's resulting decision initiated
two games of interpretive [*13] ping-pong between the judiciary and the
legislature. One involves the issue presented here: whether conspiracy is
triable by a law-of-war military commission. In
Hamdan, four justices concluded that it was not triable under the extant
statute (section 821) and three concluded that it was. Compare Hamdan,
548 U.S. at 603-13 (plurality opinion of Stevens, J.), with id. at 697-704
(Thomas, J., dissenting). Four justices also "specifically invited Congress
to clarify the scope of the President's statutory authority to use military
commissions to try unlawful alien enemy combatants for war crimes." HamdanII, 696 F.3d at 1243; see Hamdan, 548 U.S. at 636 (Breyer, J., concurring)
("Nothing prevents the President from returning to Congress to seek the
authority he believes necessary."); id. at 637 (Kennedy, J., concurring)
("If Congress, after due consideration, deems it appropriate to change the
controlling statutes, in conformance with the Constitution and other laws,
it has the power and prerogative to do so.").

The Congress answered the Court's invitation with the 2006 MCA, which
provides the President the very power he sought to exercise in Hamdan — the
power to try the 9/11 perpetrators for conspiracy — by including conspiracy
as an offense triable by military commission, 10 U.S.C. § 950v(b)(28)
(2006), and by conferring jurisdiction on military commissions to try alien
unlawful enemy combatants for conspiracy based on conduct that occurred
"before, on, or after September 11, 2001," id. § 948d(a). We must heed this
inter-branch dialogue, as Boumediene instructs. 553 U.S. at 738.

If this sounds familiar, it does so because it mirrors a second game of
interpretive ping-pong begun in Hamdan. There, the Court also addressed the
Government's contention that section 1005(e)(1) of the Detainee Treatment
Act of 2005 (DTA), Pub. L. 109-148, 119 Stat. 2739, 2741-42"enacted after
the Court's grant of certiorari in Hamdan — ousted it of jurisdiction to
entertain Hamdan's habeas petition.
Hamdan, 19-548 U.S. at 572. After a lengthy statutory analysis, the Court
construed the DTA to apply only to petitions filed after the DTA's enactment
and, because Hamdan's petition was filed before, the statute did not apply.
Id. at 576-84. In construing the DTA as it did, the Court avoided addressing
"grave questions about Congress' authority to impinge upon this Court's
appellate jurisdiction, particularly in habeas cases" and whether the
Congress had unconstitutionally suspended the writ of habeas corpus. Id. at
575. Although the Court relied on "[o]rdinary principles of statutory
construction" to reach its result, id., its practical message to the
Congress was clear: Stripping the courts of jurisdiction over detainees'
pending habeas petitions must be done unambiguously. Three justices
dissented, arguing that the DTA was already unambiguous in its intent to
repeal the Court's jurisdiction. Id. at 656-69 (Scalia, J., dissenting).

The [**9] Congress returned serve in the 2006 MCA. Section 7(b) clarified that
the bar to habeas jurisdiction applied to "all cases, without exception,
pending on or after the date" of the statute's enactment. 2006 MCA, § 7(b),
120 Stat. at 2636. Two years later, a detainee whose habeas petition was
pending at the time of the 2006 MCA's enactment argued that the statute did
not apply to his case because section 7(b) was not a "sufficiently clear
statement of congressional intent to strip the federal courts of
jurisdiction in pending cases." Boumediene, 553 U.S. at 737. This time, the
Court rejected the argument. It explained:
[*14]

If the Court invokes a clear statement rule to advise that certain
statutory interpretations are favored in order to avoid
constitutional difficulties, Congress can make an informed
legislative choice either to amend the statute or to retain its
existing text. If Congress amends, its intent must be respected evenif a difficult constitutional question is presented. The usual
presumption is that Members of Congress, in accord with their oath
of office, considered the constitutional issue and determined the
amended statute to be a lawful one; and the Judiciary, in light of
that determination, proceeds to its own independent judgment on the
constitutional question when required to do so in a proper case.

If this ongoing dialogue between and among the branches of
Government is to be respected, we cannot ignore that the MCA was adirect response to Hamdan 's holding that the DTA'sjurisdiction-stripping provision had no application to pendingcases.

Id. at 738 (emphases added). Having avoided the Suspension Clause issue in
Hamdan by virtue of its construction of the statute and having been answered
by the Congress's reenactment of its retroactive intent, the Court had no
choice but to resolve the difficult constitutional question presented
(whether the MCA violated the Suspension Clause).

The same thing happened here. In enacting the military commission
provisions of the 2006 MCA, the Congress plainly intended to give the
President the power which Hamdan held it had not previously supplied — just
as the 2006 MCA clarified that in fact the Congress did intend section
7(b)'s ouster of habeas jurisdiction to apply to pending cases. The
legislative history confirms this view. See Boumediene, 553 U.S. at 739
("The Court of Appeals was correct to take note of the legislative history
when construing the statute...."). Supporters and opponents of the
legislation alike agreed that the 2006 MCA's purpose was to authorize the
trial by
military commission of the 9/11 conspirators.[fn8] And because the 9/11
conspiracy took place long before 2006, the statute could accomplish its
explicit purpose only if it applied to pre-enactment conduct. As the Court
itself made clear, "we cannot ignore that the [2006] MCA was a direct
response to [*15]Hamdan's holding." Boumediene, 553 U.S. at 739.

Reading the MCA in this context and given the unequivocal nature of its
jurisdictional grant, we conclude
the 2006 MCA unambiguously authorizes Bahlul's prosecution for the charged
offenses based on pre-2006 conduct.

B. The [**10] Avoidance Canon is Inapplicable

Hamdan II's contrary conclusion turned on the following provision of the
2006 MCA:

(a) PURPOSE. — The provisions of this subchapter codify offenses
that have traditionally been triable by military commissions. This
chapter does not establish new crimes that did not exist before its
enactment, but rather codifies those crimes for trial by military
commission.

(b) EFFECT. — Because the provisions of this subchapter (including
provisions that incorporate definitions in other provisions of law)
are declarative of existing law, they do not preclude trial for
crimes that occurred before the date of the enactment of this
chapter.

10 U.S.C. § 950p (2006). In Hamdan II, the Court read this provision to
reflect the Congress's "belie[f] that the Act codified no new crimes and
thus posed no ex post facto problem." 696 F.3d at 1247. Because the Congress
was wrong in its textually stated premise—i.e., the Act did codify new war
crimes — the Court found "at least something of an ambiguity" in the
statute. Id. at 1248. It then turned to the avoidance canon to resolve the
ambiguity, concluding that the Congress intended to authorize retroactive
prosecution only if "the conduct was already prohibited under existing U.S.
law as a war crime triable by military commission." Id.

The "avoidance canon" reflects a fundamental principle of judicial
restraint. See Ashwander v. TVA, 297 U.S. 288, 341-48 (1936) (Brandeis, J.,
concurring). But "[t]he canon of constitutional avoidance comes into play
only when, after the application of ordinary textual analysis, the statute
is found to be susceptible of more than one construction; and the canon
functions as a means of choosing between them." Clark v. Martinez,
543 U.S. 371, 385 (2005) (emphasis in original); see also Milavetz, Gallop &Milavetz, P.A. v. United States, 559 U.S. 229, 239 (2010). If, after
applying ordinary principles of textual analysis, the statute is not
genuinely open to two constructions, the "canon of constitutional avoidance
does not apply." Gonzales v. Carhart, 550 U.S. 124, 154 (2007). Because the
2006 MCA unqualifiedly confers jurisdiction on military commissions to try
"any offense made punishable by this chapter or the law of war when
committed by an alien unlawful enemy combatant before, on, or afterSeptember 11, 2001," 10 U.S.C. § 948d(a) (2006) (emphases added), it is not
"fairly possible" to read the statute to apply only prospectively. UnitedStates v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (Holmes, J.).

Hamdan II perceived a "tight causal link between (i) Congress's belief
that the statute codified only crimes under pre-existing law and (ii)
Congress's statement that the new statute could therefore apply to conduct
before enactment." 696 F.3d at 1247-48. We think that link plainly affirms
the Congress's intent to apply the statute retroactively. "The Congress is a
coequal branch of government whose Members take the same oath we do to
uphold the Constitution of the United States." Rostker v. Goldberg,
453 U.S. 57, 64 (1981). We assume that, in meeting that oath, it "[*16] legislates
in the light of constitutional limitations." Rust v. Sullivan, 500 U.S. 173,
191 (1991); see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &Constr. Trades Council, 485 U.S. 568, 575 (1988);
FTC v. Am. Tobacco Co., 264 U.S. 298, 305-06 (1924); [**11]United States v.Harris, 106 U.S. 629, 635 (1883); Joint Anti-Fascist Refugee Comm. v.McGrath, 341 U.S. 123, 164 (1951) (Frankfurter, J., concurring). As section
950p makes abundantly clear, the Congress made precisely that assessment
and, whether right or wrong, concluded that the statute fell within the
constitutional limits of its legislative authority. See City of Boerne v.Flores, 521 U.S. 507, 535 (1997) ("When Congress acts within its sphere of
power and responsibilities, it has not just the right but the duty to make
its own informed judgment on the meaning and force of the Constitution.");
United States v. Nixon, 418 U.S. 683, 703 (1974) ("In the performance of
assigned constitutional duties each branch of the Government must initially
interpret the Constitution, and the interpretation of its powers by any
branch is due great respect from the others."). Indeed, the legislative
history reveals the breadth of the Congress's debate on the statute's
constitutionality. See, e.g., H.R. Rep. No. 109-664, at 25 ("For the reasons
stated in Justice Thomas's opinion [in Hamdan], the Committee [on Armed
Services] views conspiracy as a separate offense punishable by military
commissions.").

The "ambiguity" Hamdan II identified was the Congress's failure to address
what it "would ... have wanted" if it "had known that the Act was codifying
some new crimes." 696 F.3d at 1247. In other words, Hamdan II found the
statute ambiguous because the Congress did not include in the text of the
statute alternative language in case it was wrong in its reading of the law
on which it premised its legislation. But the Congress always legislates on
the basis of some set of facts or premises it believes to be true. It holds
hearings and investigates precisely for the purpose of acquiring facts and
then legislates on the basis of those facts. Because it believes to be true
the facts on which it bases its
legislation, the Congress seldom (if ever) includes instructions on what to
do if those facts are proven incorrect. Here, the Congress authorized
prosecution for "any offense made punishable by" the 2006 MCA, including
offenses based on pre-enactment conduct, precisely because it believed that
all of the offenses were already triable by military commission. The
Congress's plainly expressed belief about pre-enactment law should govern
our understanding of the Congress's intent expressed in the text of the
statute. If judicial inquiry reveals that the Congress was mistaken, it is
not our task to rewrite the statute to conform with the actual state of the
law but rather to strike it down insofar as the Congress's mistake renders
the statute unconstitutional. See Ass'n of Am. Railroads v. U.S. Dep't ofTransp., 721 F.3d 666, 673 n.7 (D.C. Cir. 2013) ("The constitutional
avoidance canon is an interpretive aid, not an invitation to rewrite
statutes to satisfy constitutional strictures."), cert. granted (June 23,
2014).

Moreover, the avoidance canon ordinarily requires no speculation into the
Congress's hypothetical intent: If the statute's text is ambiguous, we
choose a constitutional construction over an unconstitutional one. Here,
however, the "ambiguity" lies not in the text itself but in the [**12] text when
read in light of Hamdan II's [*17] subsequent finding that the premise on which
the text is based is wrong. That is, the "ambiguity" lies in the existence
of matters unknown to the Congress. But "[w]e cannot replace the actual text
with speculation as to Congress' intent," Magwood v. Patterson,
130 S.Ct. 2788, 2798 (2010), nor can we "divin[e] what Congress would have
wanted if it had thought of the situation before the court," Morrison v.Nat'l Australia Bank Ltd., 130 S.Ct. 2869, 2881 (2010); see also UnitedStates v. Public Utilities Comm'n of Cal., 345 U.S. 295, 319 (1953)
(Jackson, J., concurring) ("Never having been a Congressman, I am
handicapped in that weird endeavor. That process seems to me not
interpretation of a statute but creation of a statute."). For that reason,
"our inquiry focuses on an analysis of the textual product of Congress'
efforts, not on speculation as to the internal thought processes of its
Members." Carter v. United States, 530 U.S. 255, 272 (2000); see alsoGardner v. Collins, 27 U.S. (2 Pet.) 58, 93 (1829) ("What the legislative
intention was, can be derived only from the words they have used; and we
cannot speculate beyond the reasonable import of these words.").

Even if it may raise difficult constitutional questions, the statutory
text remains the gravamen of our interpretive inquiry. See United States v.Raynor, 302 U.S. 540, 552 (1938). "Although [we] will often strain to
construe legislation so as to save it against constitutional attack,"
Aptheker v. Sec'y of State, 378 U.S. 500, 515 (1964) (quotation marks
omitted), a court cannot "rewrite a law to conform it to constitutional
requirements, for doing so would constitute a serious invasion of the
legislative domain," United States v. Stevens, 559 U.S. 460, 481 (2010)
(quotation marks, ellipsis and citations omitted). "Here the intention of
the Congress is revealed too distinctly to permit us to ignore it because of
mere misgivings as to power. The problem must be faced and answered." GeorgeMoore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.).

IV. Bahlul's Ex Post Facto Challenge

Because the Congress's intent to authorize retroactive prosecution of the
charged offenses is clear, we must address Bahlul's ex post facto argument.
See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.)
("Questions may occur which we would gladly avoid; but we cannot avoid them.
All we can do is, to exercise our best judgment, and conscientiously to
perform our duty."). As noted, we may
overturn Bahlul's convictions only if they constitute plain constitutional
error.

The Constitution prohibits the Congress from enacting any "ex post facto
Law." U.S. CONST. art. I, § 9, cl. 3. "The phrase ex post facto law was a
term of art with an established meaning at the time of the framing." Peughv. United States, 133 S.Ct. 2072, 2081 (2013) (quoting Collins v.Youngblood, 497 U.S. 37, 41 (1990)) (quotation marks omitted). In Calder v.Bull, Justice Chase set forth his understanding of that meaning:

1st. Every law that makes an action, done before the passing of
the law, and which was innocent when done, criminal; and punishes
such action. 2nd. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, [*18] than the law annexed
to the crime, when committed. 4th. Every law that alters the legal
rules of evidence, [**13] and receives less, or different, testimony, than
the law required at the time of the commission of the offence, in
order to convict the offender.

In our order granting en banc review, we asked the parties to brief
whether the Ex Post Facto Clause applies in cases involving aliens detained
at Guantanamo. The Government has taken the position that it does. Although
we
are not obligated to accept the Government's concession, see Young v. UnitedStates, 315 U.S. 257, 258-59 (1942); United States v. Baldwin, 563 F.3d 490,
491 (D.C. Cir. 2009), we will assume without deciding that the Ex Post Facto
Clause applies at Guantanamo. In so doing, we are "not to be understood as
remotely intimating in any degree an opinion on the question." Petite v.United States, 361 U.S. 529, 531 (1960) (per curiam); see also Casey v.United States, 343 U.S. 808, 808 (1952) (per curiam) ("To accept in this
case [the Solicitor General's] confession of error would not involve the
establishment of any precedent."); United States v. Bell, 991 F.2d 1445,
1447-48 (8th Cir. 1993).[fn9]

A. Conspiracy

We reject Bahlul's ex post facto challenge to his conspiracy conviction
for two independent and alternative reasons. First, the conduct for which he
was convicted was already criminalized under 18 U.S.C. § 2332(b) (section
2332(b)) when Bahlul engaged in it. It is not "plain" that it violates the
Ex Post Facto Clause to try a pre-existing federal criminal offense in a
military commission and any difference between the elements of that offense
and the conspiracy charge in the 2006 MCA does not seriously affect the
fairness, integrity or public reputation of judicial proceedings. Second, it
is not "plain" that conspiracy was not already
triable by law-of-war military commission under 10 U.S.C. § 821 when
Bahlul's conduct occurred.

1. Section 2332(b)

Bahlul was convicted of conspiracy to commit seven war crimes enumerated
in the 2006 MCA, including the murder of protected persons.[fn10] Although
the 2006 [*19] MCA post-dates Bahlul's conduct, section 2332(b) has long been on
the books, making it a crime to, "outside the United States," "engage[] in a
conspiracy to kill[] a national of the United States." 18 U.S.C. § 2332(b);
see Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No.
99-399, § 1202(a), 100 Stat. 853, 896. Section 2332(b) is not an offense
triable by military commission but, the Government argues, "[t]he fact that
the MCA provides a different forum for adjudicating such conduct does not
implicate ex post facto concerns." E.B. Br. of United States 67. We agree.
See infra p. 53 (remanding to panel to determine Bahlul's other
constitutional challenges).

The right to be tried in a particular forum is not the sort of right the
Ex Post Facto Clause protects. See Collins, 497 U.S. at 51. In Collins, the
Supreme Court sifted through its Ex Post Facto Clause precedent, noting that
some cases had
said that a "procedural" change—i.e., a "change[] in the procedures by which
a criminal case is adjudicated—"may violate the Ex Post Facto Clause if the
change "affects matters [**14] of substance" by "depriving a defendant of
substantial protections with which the existing law surrounds the person
accused of crime or arbitrarily infringing upon substantial personal
rights." Id. at 45 (citations, brackets and quotation marks omitted). The
Court observed that such language had "imported confusion" into its doctrine
and it attempted to reconcile that language so as to not enlarge the Ex PostFacto Clause's application beyond laws that "make innocent acts criminal,
alter the nature of the offense, or increase the punishment." Id. at 46. One
case that could not be reconciled was Thompson v. Utah, in which the Court
had found that a change in Utah law reducing the size of criminal juries
from 12 to 8 persons violated the Ex Post Facto Clause by depriving the
defendant of "a substantial right involved in his liberty." 170 U.S. 343,
352-53 (1898). The Court overruled Thompson in Collins, explaining that the
reduced size of the jury was not in fact an ex post facto violation because
"[t]he right to jury trial provided by the Sixth Amendment is obviously a
'substantial' one, but it is not a right that has anything to do with the
definition of crimes, defenses, or punishments, which is the concern of the
Ex Post Facto Clause." Collins, 497 U.S. at 51.

Similarly, in Cook v. United States, the Court held that an act vesting
jurisdiction over a crime in a newly formed judicial district does not
violate the Ex Post Facto Clause because "[i]t only ... subjects the accused
to trial in th[e new] district rather than in the court of some other
judicial district established by the government against whose laws the
offense was committed. This does not alter the situation of the defendants
in respect to their offense or its consequences." 138 U.S. 157, 183 (1891);
accord Gut v. Minnesota, 76 U.S. 35, 38 (1869) ("An ex post facto law does
not involve, in any of its definitions, a change of the place of trial of an
alleged offence after its commission."); see also Duncan v. Missouri,
152 U.S. 377, 382-83 (1894) (suggesting no ex post facto violation where
defendant's appeal was heard by smaller appellate panel than provided for at
time of his offense).

It is therefore not a plain ex post facto violation to transfer
jurisdiction over a crime from an Article III court to a military commission
because such a transfer does not have anything to do with the definition of
the crime, the defenses or the punishment. That is so regardless of the
[*20] different evidentiary rules that apply under the 2006 MCA. See Carmell,
529 U.S. at 533 n.23 (change in "[o]rdinary rules of evidence ... do[es] not
violate the [Ex Post Facto] Clause"); id. at 542-47; Collins, 497 U.S. at 43
n.3; Beazell v. Ohio, 269 U.S. 167, 171 (1925); Thompson v. Missouri,
171 U.S. 380, 386-88 (1898); Hopt v. Utah, 110 U.S. 574, 589-90 (1884). Nor
is this a case like Carmell, where a law retroactively reduced the "quantum
of evidence necessary to sustain a conviction," 529 U.S. at 530; the 2006
MCA requires the Government to prove guilt beyond a reasonable doubt, see10 U.S.C. § 949l(c); see also Trial Tr. 233, 878 (military judge's
instructions to commission).[fn11]

Our inquiry is not ended, however, because the 2006 MCA
conspiracy-to-murder-protected-persons charge and section 2332(b) do not
have identical elements. The difference is a potential problem because the
Ex Post Facto[**15] Clause prohibits "retrospectively eliminating an element of
the offense" and thus "subvert[ing] the presumption of innocence by reducing
the number of elements [the government] must prove to overcome that
presumption." Carmell, 529 U.S. at 532. Both statutes require the existence
of a conspiracy and an overt act in furtherance thereof. See18 U.S.C. § 2332(b)(2); 10 U.S.C. § 950v(b)(28) (2006); see also Trial Tr.
846, 849-50 (military judge's instructions to commission). The 2006 MCA
conspiracy charge is in one sense more difficult to prove than section
2332(b) because it applies only to alien unlawful enemy combatants engaged
in hostilities against the United States. See10 U.S.C. §§ 948b(a), 948c,
948d; see also Trial Tr. 843-45 (instructions). But the 2006 MCA charge is
in two ways easier to prove than a section 2332(b) charge. It does not
require that the conspiracy occur "outside the United States" or that the
conspiracy be to kill a "national of the United States," as section 2332(b)
does. It simply requires a conspiracy to murder "one or more protected
persons." Trial Tr. 850-51 (instructions); see supra n.10 (providing MCA's
definition of "protected person"). Although the two statutes are quite
similar, then, the 2006 MCA conspiracy charge
eliminates two elements required to convict a defendant under section
2332(b).[*21][fn12]

Nevertheless, Bahlul cannot bear his burden of establishing that the
elimination of the two elements "seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings." Olano,
507 U.S. at 732 (quotation marks omitted); see United States v. Vonn,
535 U.S. 55, 62-63 (2002) (defendant bears burden of proving Olano's fourth
prong); see also United States v. Johnson, 331 F.3d 962, 967 (D.C. Cir.
2003) (proceeding directly to fourth prong if it can resolve appeal). He
cannot satisfy the fourth prong because the charges against him and the
commission's findings necessarily included those elements and the evidence
supporting them was undisputed. To explain why requires that we first
discuss the most on-point Supreme Court precedent.

In Johnson v. United States, the Supreme Court reviewed a defendant's
conviction for perjury where the district court had decided the issue of
materiality itself rather than submit that issue to the jury, as the Court's
precedent requires. 520 U.S. 461, 463 (1997). The defendant did not object,
however, so the Court reviewed his conviction for plain error. Because the
evidence of the missing materiality element was
"overwhelming" and "essentially uncontroverted at trial," the Court
concluded that the error, although plain, did not seriously affect the
fairness, integrity or public reputation of judicial proceedings. Id. at
470; cf. Neder v. United States, 527 U.S. 1, 19 (1999) (failure to submit
element to jury was harmless error "where [the] defendant did not, and
apparently could not, bring forth facts contesting the omitted element").
Similarly, in United States v. Cotton, the indictment failed to charge the
drug quantity involved in the offense, as the Court's precedent requires for
any fact that enhances the otherwise applicable statutory maximum sentence.
535 U.S. 625, 627-28 (2002). After the jury found the defendants guilty of a
narcotics conspiracy, the district court [**16] made drug quantity findings that
enhanced the defendants' statutory maximums. Id. at 628. This was "error"
and it was "plain" but the Court nevertheless upheld the convictions under
Olano's fourth prong. Because the evidence of the requisite drug quantity
was "overwhelming" and "essentially uncontroverted," the Court concluded
that "[t]he real threat ... to the fairness, integrity, and public
reputation of judicial proceedings would be if [the defendants] ... were to
receive a sentence prescribed for those committing less substantial drug
offenses because of an error that was never objected to at trial." Id. at
633-34 (quotation marks omitted); accord Johnson, 331 F.3d at 966-70; UnitedStates v. Webb, 255 F.3d 890, 899-902 (D.C. Cir. 2001).

Here, the evidence of the two missing elements was not simply
"overwhelming" and "essentially uncontroverted"—it was entirely
uncontroverted. Bahlul was charged with committing numerous overt acts "in
Afghanistan, Pakistan and elsewhere" that furthered the conspiracy's
unlawful objects; those objects included the murder of protected persons.
App. 122-25. He did not dispute that his conduct occurred outside the United
States nor did he dispute that the
purpose of the conspiracy was to murder United States nationals. See Trial
Tr. 167 (Bahlul: "And what I did ... is to kill Americans...."); id. at
511-12 ("[Bahlul] does not consider anybody protected person[s] or
civilians.... [A]s long as you're a[n] American, you are a target.").
Indeed, several witnesses testified that Bahlul considered all Americans to
be targets. Id. at 503, 512, 596, 653. The commission was instructed on the
[*22] overt acts allegedly undertaken by Bahlul in furtherance of the conspiracy,
see id. at 846-47, and was instructed that one of the conspiracy's object
offenses was the murder of protected persons, id. at 850. The commission
specifically found that Bahlul committed ten overt acts, all of which took
place outside the United States and several of which directly relate to the
9/11 attacks that killed thousands of United States nationals. App. 132-33.
And it found that all seven of the alleged object offenses, including murder
of protected persons, were objects of the conspiracy. App. 131. There is no
scenario in which the commission could have found that Bahlul committed
these overt acts yet rationally found that the conspiracy did not take place
outside the United States and did not have as an object the murder of United
States nationals. Accord Webb, 255 F.3d at 901. Although the commission was
not specifically instructed that it had to find these two elements, the
overt acts it did find Bahlul had committed necessarily included the two
elements and Bahlul did not, and does not, dispute either. Therefore,
although the 2006 MCA conspiracy offense, as charged here, does "eliminat[e]
an element of the offense," Carmell, 529 U.S. at 532, the omission did not
seriously affect the fairness, integrity, or public reputation of the
proceedings.

When Bahlul committed the crimes of which he was convicted, section 821
granted — and still grants — military commissions jurisdiction "with respect
to offenders or offenses that by statute or by the [**17] law of war may be tried
by military commissions." 10 U.S.C. § 821. Section 821 and its predecessor
statute have been on the books for nearly a century. See Pub. L. No. 64-242,
39 Stat. 619, 653 (1916); Pub. L. No. 66-242, 41 Stat. 759, 790 (1920); Pub.
L. No. 81-506, 64 Stat. 107, 115 (1950); Madsen v. Kinsella, 343 U.S. 341,
350-51 & n.17 (1952). We must therefore ascertain whether conspiracy to
commit war crimes was a "law of war" offense triable by military commission
under section 821 when Bahlul's conduct occurred because, if so, Bahlul's expost facto argument fails.

In answering this question, we do not write on a clean slate. In Hamdan,
seven justices of the Supreme Court debated the question at length. Four
justices concluded that conspiracy is not triable by military commission
under section 821. 548 U.S. at 603-13 (plurality opinion of Stevens, J.).
Three justices opined that it is. Id. at 697-704 (Thomas, J., dissenting).
Both opinions scoured relevant international and domestic authorities but
neither position garnered a majority. The case was resolved on other grounds
and the eighth vote" one justice was recused — left the conspiracy question
for another day, noting that the Congress may "provide further guidance in
this area." See id. at 655 (Kennedy, J., concurring). In light of the
uncertainty left by the split, it was not "plain" error to try Bahlul for
conspiracy by military commission pursuant to section 821. See United Statesv. Terrell, 696 F.3d 1257, 1260 (D.C. Cir. 2012) (plain error met only if
"its erroneous character" is established by "a clear precedent in the
Supreme Court or this circuit").

The reason for the uncertainty is not only the divided result in Hamdan
but also the High Court's failure to clearly resolve a subsidiary question:
What body of law is encompassed by section 821's reference to the "law of
war"? That dispute takes center stage here. Bahlul contends that "law of
war" means the international law of war, full stop. The Government contends
that we must look not only to international [*23] precedent but also "the common
law of war developed in U.S. military tribunals." E.B. Br. of United States
28; see also Oral Arg. Tr. 15 ("[W]e believe the law of war is the
international law of war as supplemented by the experience and practice of
our wars and our wartime tribunals."). The answer is critical because the
Government asserts that conspiracy is not an international law-of-war
offense. See E.B. Br. of United States 34; Oral Arg. Tr. 15.

In Hamdan II, the Court said that "law of war" as used in section 821 is a
term of art that refers to the international law of war. 696 F.3d at 1248;
see also id. at 1252 (noting that "U.S. precedents may inform the content of
international law"); cf. Kavanaugh Op. 11 n.5 (stating that Hamdan II's
interpretation of section 821 "was not necessary to the result"). Language
in several Supreme Court opinions supports that proposition. See, e.g.,Quirin, 317 U.S. at 27-28 ("[T]his Court has recognized and applied the law
of war as including that part of the law of nations which prescribes, for
the conduct of war, the status, rights and duties of enemy nations as well
as of enemy individuals."); id. at 29 (describing law of war as "branch of
international law"); see also Hamdan, 548 U.S. at 603 (plurality) (citing
Quirin and describing offense [**18] alleged therein as being "recognized as an
offense against the law of war" both "in this country and internationally");
id. at 610-11 (analyzing international law sources); id. at 641 (Kennedy,
J., concurring) ("[T]he law of
war ... is the body of international law governing armed conflict." (citing
Quirin, 317 U.S. at 28)); Madsen, 343 U.S. at 354-55 ("The 'law of war' ...
includes at least that part of the law of nations which defines the powers
and duties of belligerent powers occupying enemy territory pending the
establishment of civil government."); Yamashita, 327 U.S. at 12-16
(analyzing international precedent in determining whether offense was
violation of law of war); Rogers Op. 6-7 (concluding on de novo review that
section 821 refers to international law of war). Several Executive Branch
interpretations and scholarly articles also support that reading. See HamdanII, 696 F.3d at 1248-49 & n.9 (collecting citations).

On the other hand, section 821 might not be so limited (as two of our
colleagues would hold on de novo review). See Brown Op. 3; Kavanaugh Op.
7-11; see also Hamdan, 548 U.S. at 689 (Thomas, J., dissenting) ("[W]hether
an offense is a violation of the law of war cognizable before a military
commission must be determined pursuant to the system of common law applied
by military tribunals ... [which] is derived from the experience of our wars
and our wartime tribunals and the laws and usages of war as understood and
practiced by the civilized nations of the world." (citations and quotation
marks omitted)). Significantly, both the Hamdan plurality and dissent relied
primarily on domestic precedent to ascertain whether conspiracy could be
tried under section 821. See Hamdan, 548 U.S. at 603-09 (plurality); id. at
689-704 (Thomas, J., dissenting).[fn13] There is also language in Yamashita
and Quirin that domestic precedent is an important
part of our inquiry. See Yamashita, 327 U.S. at 8 ("[The Congress] adopted
the system of military common law applied by military tribunals so far as it
should be recognized [*24] and deemed applicable by the courts, and as further
defined and supplemented by the Hague Convention...."); Quirin,
317 U.S. at 31-35, 42 n.14 (evaluating domestic precedent to determine
whether offense charged was law-of-war offense); see also Madsen,
343 U.S. at 347-48. Moreover, as the Supreme Court has explained, when the
Congress enacted section 821 and its predecessors, it intended to preserve,
not limit, the pre-existing jurisdiction of military commissions. SeeMadsen, 343 U.S. at 352-53; Yamashita, 327 U.S. at 19-20; see also Hamdan,
548 U.S. at 593 (majority) ("[T]he Quirin Court recognized that Congress had
simply preserved what power, under the Constitution and the common law of
war, the President had had before 1916 to convene military commissions —
with the express condition that the President and those under his command
comply with the law of war."). It is therefore arguable that the Congress
also intended to incorporate military commission precedents predating
section 821's enactment. See Sekhar v. United States, 133 S.Ct. 2720, 2724
(2013) ("[I]f a word is obviously transplanted from another legal source,
whether the common law or other legislation, it brings the old soil with
it." (quoting Felix Frankfurter, Some Reflections on the Reading ofStatutes, 47 COLUM. L. REV. 527, 537 (1947))); Lorillard [**19] v. Pons,
434 U.S. 575, 581 (1978) ("[W]here, as here, Congress adopts a new law
incorporating sections of a prior law, Congress normally can be presumed to
have had knowledge of the interpretation given to the incorporated law, at
least insofar as it affects the new statute.").

Ultimately, we need not resolve de novo whether section 821 is limited to
the international law of war. It is sufficient for our purpose to say that,
at the time of this appeal, the
answer to that question is not "obvious." Olano, 507 U.S. at 734; seeHenderson v. United States, 133 S.Ct. 1121, 1130-31 (2013) (plainness of
error determined at time of appeal). As seven justices did in Hamdan, we
look to domestic wartime precedent to determine whether conspiracy has been
traditionally triable by military commission. That precedent provides
sufficient historical pedigree to sustain Bahlul's conviction on plain-error
review.

Most notably, the individuals responsible for the assassination of
President Abraham Lincoln were charged with a single offense—"combining,
confederating, and conspiring ... to kill and murder ... Abraham
Lincoln"—and were convicted of that offense by military commission. General
Court-Martial Order No. 356, War Dep't (July 5, 1865), reprinted in H.R.
DOC. NO. 55-314, at 696 (1899).[fn14] The specification of the offense
includes several paragraphs, each of which sets forth a separate overt act
done "in further prosecution of the unlawful and traitorous conspiracy." Id.
at 697-98; see also THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF
THE CONSPIRATORS 18-21 (New York, Moore, Wilstach & Baldwin 1865). A federal
district court later denied three of the conspirators' habeas petitions
raising jurisdictional objections to the commission. Ex Parte Mudd,
17 F. Cas. 954 (S.D. Fla. 1868).
[*25]

President Andrew Johnson personally approved the convictions. In doing so,
he considered the jurisdictional limits of military commissions: He asked
Attorney General James Speed whether the accused could be tried for
conspiracy in a military commission. In a lengthy opinion, Attorney General
Speed said they could. See Military Commissions, 11 Op. Att'y Gen. 297
(1865). We think this highest-level Executive Branch deliberation is worthy
of respect in construing the law of war. Cf. Sosa v. Alvarez-Machain,
542 U.S. 692, 733-34 (2004) (looking "albeit cautiously" to sources like
"controlling executive ... act[s]" to ascertain current state of
international law (quoting The Paquete Habana, 175 U.S. 677, 700 (1900));
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 780 n.6 (D.C. Cir. 1984)
(Edwards, J., concurring) (Attorney General opinions not binding but
"entitled to some deference, especially where judicial decisions construing
a statute are lacking"). Granted, the Attorney General's framing of the
question presented" "whether the persons charged with the offence of having
assassinated the President can be tried before a military tribunal"—casts
some doubt on whether he was addressing inchoate conspiracy or the offense
of assassination. 11 Op. Att'y Gen. at 297; see Hamdan, 548 U.S. at 604 n.35
(plurality). But the Attorney General's opinion was written after the
commission had been convened and the convictions had been approved; he would
therefore have been [**20] aware that the sole offense alleged was
conspiracy.[fn15] On the other hand,
that the Attorney General's opinion was written after the convictions were
approved may undermine its persuasive value, as it could be viewed as a posthoc rationalization for a decision already made.

Either way, the Lincoln conspirators' trial was a matter of paramount
national importance and attracted intense public scrutiny. Thus, when the
Congress enacted section 821's predecessor — and "preserved what power,
under the Constitution and the common law of war, the President had had
before 1916 to convene military commissions," Hamdan, 548 U.S. at 593
(majority) — it was no doubt familiar with at least one high-profile example
of a conspiracy charge tried by a military commission. Because of the
national prominence of the case and the highest-level Executive Branch
involvement, we view the Lincoln conspirators' trial as a particularly
significant precedent.[*26][fn16]

Also noteworthy is the World War II-era military commission trial of
several Nazi saboteurs who entered the United States intending to destroy
industrial facilities; they were convicted of, inter alia, conspiracy to
commit violations of the law of war. See Quirin, 317 U.S. at 21-23. Although
the Supreme Court resolved the case on other grounds and therefore did not
review the validity of the conspiracy conviction, the case remains another
prominent example of a conspiracy charge tried in a law-of-war military
commission. President Franklin D. Roosevelt, like President Johnson before
him, approved the charges. See7 Fed.Reg. 5103-02 (July 7, 1942). Moreover,
Quirin is not the sole example from that era. See Colepaugh v. Looney,
235 F.2d 429, 431-32 (10th Cir. 1956) (upholding conviction by military
commission of Nazi saboteur of conspiracy to commit offense against law of
war); General Order (G.O.) No. 52, War Dep't (July 7, 1945) (President
Truman approves convictions of Colepaugh conspirators), reprinted in Supp.
Auth. 149-50; Memo. of Law from Tom C. Clark, Assistant Att'y Gen., to Major
General Myron C. Kramer, Judge Advocate Gen., at 6 (Mar. 12, 1945),
reprinted in Supp. Auth. 139 (opining, with regard to Colepaugh case, that
"it may be said to be well established that a conspiracy to commit an
offense against the laws of war is itself an offense cognizable by a
commission administering military justice"). Finally, during the Korean War,
General Douglas MacArthur ordered that persons accused of "conspiracies and
agreements to commit ... violations of the laws and customs of war of
general
application" be tried by military commission. See Letter Order, Gen. HQ,
United Nations Command, Tokyo, Japan, Trial of Accused War Criminals (Oct.
28, 1950) (Rules of Criminal Procedure for Military Commissions, Rule 4).

We do not hold that these precedents conclusively establish conspiracy as
an offense triable by military commission under section 821. After all, four
justices examined the same precedents and found them insufficiently clear.
Hamdan, 548 U.S. at 603-09 (plurality);[fn17]cf. Marks v. United States,
430 U.S. 188, 193 (1977). But there are two differences between Hamdan and
this case. First, the elements of the conspiracy charge were not defined [**21] by
statute in Hamdan and therefore the plurality sought precedent that was
"plain and unambiguous." 548 U.S. at 602. Here, the Congress has positively
identified conspiracy as a war crime. We need not decide the effect of the
Congress's action, however, because we rely on the second difference: The
Hamdan plurality's [*27] review was de novo; our review is for plain error. We
think the historical practice of our wartime tribunals is sufficient to make
it not "obvious" that conspiracy was not traditionally triable by law-of-war
military commission under section 821. Olano, 507 U.S. at 734. We therefore
conclude that any Ex Post Facto Clause error in trying Bahlul on conspiracy
to commit war crimes is not plain. See United States v. Vizcaino,
202 F.3d 345, 348 (D.C. Cir. 2000) (assuming error to decide it was not
plain).

B. Material Support

A different result obtains, however, regarding Bahlul's conviction of
providing material support for terrorism.[fn18] The Government concedes that
material support is not an international law-of-war offense, see Oral Arg.
Tr. 15; Panel Br. of United States 50, 57, and we so held in Hamdan II,
696 F.3d at 1249-53. But, in contrast to conspiracy, the Government offers
little domestic precedent to support the notion that material support or a
sufficiently analogous offense has historically been triable by military
commission. Although Bahlul carries the burden to establish plain error, seeUnited States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007), we presume
that in the unique context of the "domestic common law of war"—wherein the
Executive Branch shapes the relevant precedent and individuals in its employ
serve as prosecutor, judge and jury — the Government can be expected to
direct us to the strongest historical precedents. What the Government puts
forth is inadequate.

The Government relies solely on a number of Civil Warera field orders
approving military commission convictions of various offenses that, the
Government contends, are analogous to material support. Before delving into
the specifics of the orders, we note our skepticism that such informal field
precedent can serve as the sole basis for concluding that a particular
offense is triable by a law-of-war military commission. Unlike the Lincoln
conspirators' and Nazi saboteurs' cases, which attracted national attention
and reflected the deliberations of highest-level Executive Branch officials,
the field precedents are terse recordings of drumhead justice executed on or
near the battlefield. Indeed, several precedents cited by the Government for
trying material support and solicitation under the "law of war" were issued
by the same 1862 military commission that tried one Henry Willing for the
offense of "[b]eing a bad and dangerous man." G.O. No. 19, HQ, Dep't of the
Mississippi (Apr. 24, 1862), 1 THE WAR OF THE REBELLION, OFFICIAL RECORDS OF
THE UNION AND CONFEDERATE ARMIES (OR) ser. II, at 480-81. In addition, the
military commissions these orders memorialize were not always models of due
process.[*28][fn19] And, as the Hamdan plurality explained, the Civil War
commissions "operated as both martial law or military government tribunals
[**22] and law-of-war commissions," obliging us to treat the precedents "with
caution" because of their unclear jurisdictional basis. 548 U.S. at 596 n.27
(plurality); see also id. at 608.[fn20]

In any event, even if the law of war can be derived from field precedents
alone, none of the cited orders charges the precise offense alleged here —
providing material support for terrorism. The Government nonetheless
contends that the material support charge "prohibits the same conduct, under
a modern label, as the traditional offense of joining with or providing aid
to guerrillas and other unlawful belligerents." E.B. Br. of United States
48. But we do not think the cited field orders establish that such conduct
was tried by law-ofwar military commissions during the Civil War.[fn21]

First, every precedent cited by the Government involves offenses committed
in Missouri, a border state; none is from a state that seceded. See Dow v.Johnson, 100 U.S. 158, 164-65 (1879) (observing that, during the Civil War,
"[t]he people of the loyal States ... and the people of the Confederate
States ... became enemies to each other, and ... [c]ommercial intercourse
and correspondence between them were prohibited ... by the accepted
doctrines of public law"); McKinzie v. Hill, 51 Mo. 303, 307 (1873) ("[T]he
principles [regarding the duty of "total non-intercourse between the
belligerents"] have no application to the present case. Missouri was not one
of the States that joined in the rebellion."). The difference between a
border state — whose citizens owed a duty of loyalty to the United States —
and a state that seceded — whose citizens did not — is significant. The
crime of "aiding the enemy," which includes as an element the breach of a
duty of loyalty owed to the United States, had long been triable by military
commission.
See Hamdan II, 696 F.3d at 1245 n.4 (citing Hamdan, 548 U.S. at 600-01 n.32
(plurality)); WINTHROP, MILITARY LAW AND PRECEDENTS, supra, at 839-40
("offences in violation of the laws and usages of war" subject to trial by
law-of-war military commission include "breaches of the law of
non-intercourse with the enemy, such as ... furnishing them with money,
arms, provisions, medicines, & c"); see also10 U.S.C. § 950v(b)(26) (2006)
(codifying offense of aiding enemy to include element of "breach of an
allegiance or duty to the United States"). The orders cited by the
Government frequently refer to the treasonous nature of the conduct,
implying a breach of loyalty. See, e.g., G.O. No. 9, HQ, Dep't of the
Mississippi (Mar. 25, 1862), 1 OR ser. II, at 465- 66 (case of John
Montgomery); id. at 467 (case of Joseph Bollinger); G.O. No. 1, HQ, Dep't of
the Missouri (Jan. 1, 1862), 1 OR ser. II, at 248 ("[C]ertain acts of a
treasonable character such as conveying information to the enemy, acting as
spies, & c., are military offenses triable by military tribunals and
punishable by military authority."); see also Young v. United States,
97 U.S. 39, 62 (1877) ("[T]reason is a [*29] breach of allegiance, and can be
committed by him only who owes allegiance...." (quotation marks omitted)).
The material support offense charged here, which lacks a breach of loyalty
requirement, is plainly distinguishable from the "aiding the enemy"
precedent.

Second, several of the cited field orders appear to involve offenses more
[**23] akin to aiding and abetting a law-of-war violation. See, e.g., G.O. No. 19,
HQ, Dep't of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at 478 (Matthew
Thompson convicted of "joining with, aiding and assisting [a] band [of
desperadoes] in the commission of acts of plunder, robbery and abuse of the
citizens of the State of Missouri"). Aiding and abetting is a theory of
criminal liability, not a stand-alone offense like material support. SeeAli, 718 F.3d at 49-936.
As the Court said in Hamdan II, "aiding and abetting terrorism prohibits
different conduct, imposes different mens rea requirements, and entails
different causation standards than material support for terrorism."
696 F.3d at 1252. Thus, "[i]f the Government wanted to charge [Bahlul] with
aiding and abetting terrorism ... it should have done so." Id.; see10 U.S.C. § 950q(1) (2006) (one who "aids [or] abets" offense proscribed by
2006 MCA is punishable as principal).

Third, other orders appear to involve the offense of unlawful belligerency
— that is, directly waging guerrilla warfare. See, e.g., G.O. No. 15, HQ,
Dep't of the Mississippi (Apr. 3, 1862), 1 OR ser. II, at 472-476 (approving
convictions of several men who each, not "being a soldier belonging to any
lawfully authorized and organized military forces at war with the United
States," "t[ook] up arms as an insurgent and commit[ted] acts of hostility
against" United States military forces); G.O. No. 9, HQ, Dep't of the
Mississippi (Mar. 25, 1862), 1 OR ser. II, at 464-65 (William Kirk convicted
of "belong[ing] to a marauding or guerrilla band" that "did unlawfully
plunder and take away a certain yoke of oxen, wagon and other property");
see also Instructions for the Government of Armies of the United States in
the Field, G.O. No. 100, art. 82 (Apr. 24, 1863); WINTHROP, MILITARY LAW AND
PRECEDENTS, supra, at 840.

The upshot is that the Civil War field precedent is too distinguishable
and imprecise to provide the sole basis for concluding that providing
material support for terrorism was triable by law-of-war military commission
at the time of Bahlul's conduct.[fn22] We therefore think it was a plain
ex post facto violation — again, assuming without deciding that the
protection of the Ex Post Facto Clause extends to Bahlul, see supra pp.
26-27"to try Bahlul by military commission for that new offense. SeeCollins, 497 U.S. at 42-43. The error is prejudicial and we exercise our
discretion to correct it by vacating Bahlul's material support conviction.
Olano, 507 U.S. at 734-36; see also Casey, 343 U.S. at 808 (vacating
conviction based on Government's confession of error); [*30]United States v. Law,
528 F.3d 888, 909 (D.C. Cir. 2008) (same); cf. Petite, 361 U.S. at 531
(vacating conviction based on Government's motion).[fn23]

C. Solicitation

We also conclude that solicitation of others to commit war crimes is
plainly not an offense traditionally triable by military commission.[fn24]
The Government concedes it is not an international law-of-war offense. See
Oral Arg. Tr. 15; Panel Br. of United States 50, 57. The Government contends
that solicitation "possesses a venerable lineage as an offense triable by
military commission," E.B. Br. of United States 50, but it cites only two
Civil War-era field orders involving three defendants in support thereof. It
mischaracterizes one [**24] of the orders, asserting that "a military commission
convicted Francis Skinner of 'counsel[ing]' and 'invit[ing]' others to
destroy a railroad in violation of the law of war," id., when in fact
Skinner was acquitted of that offense. See G.O. No. 19, HQ, Dep't of the
Mississippi (Apr. 24, 1862), 1 OR ser. II, at 476-77. And although the other
two defendants in the cited cases were convicted on charges that resemble
the 2006 MCA solicitation offense, they were also convicted of personal
involvement in the crimes they solicited. See id. at 478 (James Barnes
convicted of both "attack[ing] the dwelling-house of one Thomas H. Keene ...
and with guns and pistols attempt[ing] to murder the occupants of said
house" and "incit[ing] certain persons unknown to make" that attack); G.O.
No. 15, HQ, Dep't of the
Mississippi (Apr. 3, 1862), 1 OR ser. II, at 475 (Edward Wingfield convicted
of both "assist[ing] and abet[ting] the said persons in the destruction of
the track, bridges and buildings of the [North Missouri Railroad]" and
"incit[ing], induc[ing] and procur[ing] the said persons to take up arms and
to commit acts of hostility against the property of the United States"); cf.Hamdan, 548 U.S. at 609 (plurality).

As noted, we are skeptical that field orders can be the sole basis for
military commission jurisdiction over a particular offense. See supra p. 46.
Moreover, the two field orders discussed fall far short of meeting any
showing we would require. Because solicitation to commit war crimes was not
an offense triable by law-of-war military commission when Bahlul's conduct
occurred, it is a plain ex post facto violation — again, assuming without
deciding that the protection of the Ex Post Facto Clause extends to Bahlul,
see supra pp. 26-27"to try him by military commission for that new offense.
See Collins, 497 U.S. at 42-43[*31] . The error is prejudicial and we exercise our
discretion to correct it by vacating Bahlul's solicitation conviction.
Olano, 507 U.S. at 734-736; see also Casey, 343 U.S. at 808; Law,
528 F.3d at 909; cf. Petite, 361 U.S. at 531.[fn25]

V. Remaining Issues

In his brief to the panel, Bahlul raised four challenges to his
convictions that we have not addressed here. He argued that (1) the Congress
exceeded its Article I, § 8 authority by defining crimes triable by military
commission that are not offenses under the international law of war, see Br.
for Bahlul 38, Bahlul v. United States, No. 11-1324 (D.C. Cir. Mar. 9,
2012); (2) the Congress violated Article III by vesting military commissions
with jurisdiction to try crimes that are not offenses under the
international law of war, see id. at 39-40; (3) his convictions violate the
First Amendment, see id. at 43; and (4) the 2006 MCA discriminates against
aliens in violation of the equal protection component of the Due Process
Clause, see id. at 54. We intended neither the en banc briefing nor argument
to address these four issues. See Order, Bahlul v. United States, No.
11-1324 (D.C. Cir. May 2, 2013) (notifying parties that Equal Protection and
First Amendment issues are not "within the scope of the rehearing en banc").
And with the exception of a few passages regarding the first two, we
received none from the parties. We therefore remand the case to the original
panel of this Court to dispose of Bahlul's remaining [**25] challenges to his
conspiracy conviction. See United States v. McCoy, 313 F.3d 561, 562 (D.C.
Cir. 2002) (en banc) (remanding outstanding issue to panel).

For the foregoing reasons, we reject Bahlul's ex post facto challenge to
his conspiracy conviction and remand that conviction to the panel to
consider his alternative challenges thereto. In addition, we vacate Bahlul's
convictions of providing material support for terrorism and solicitation of
others to commit war crimes, and, after panel consideration, remand to the
CMCR to determine the effect, if any, of the two vacaturs on sentencing.

[fn2] The military commission specifically found that Bahlul committed the
following overt acts: (1) traveled to Afghanistan with the purpose and
intent of joining al Qaeda; (2) met with Saif al Adl, the head of the al
Qaeda Security Committee, as a step toward joining al Qaeda; (3) underwent
military-type training at an al Qaeda sponsored training camp located in
Afghanistan; (4) pledged fealty or "bayat" to the leader of al Qaeda, Osama
bin Laden, joined al Qaeda and provided personal services in support of al
Qaeda; (5) prepared and assisted in the preparation of various propaganda
products, including the video "The Destruction of the American Destroyer
U.S.S. Cole," to solicit material support for al Qaeda, to recruit to and
indoctrinate personnel about the organization and objectives of al Qaeda and
to solicit, incite and advise persons to commit terrorism; (6) acted as
personal secretary and media secretary of bin Laden in support of al Qaeda;
(7) arranged for Muhammed Atta and Ziad al Jarrah to pledge fealty or
"bayat" to bin Laden; (8) prepared the propaganda declarations styled as
martyr wills of Atta and al Jarrah in preparation for the acts of terrorism
perpetrated by Atta, al Jarrah and others at various locations in the United
States on September 11, 2001; (9) at the direction of bin Laden, researched
the economic effect of the 9/11 attacks on the United States and provided
the results of that research to bin Laden; and (10) operated and maintained
data processing equipment and media communications equipment for the benefit
of bin Laden and other members of the al Qaeda leadership. App. 132-33; seealso id. at 122-23 (charging document).

[fn3] Under the 2006 MCA, a military commission "may be convened by the
Secretary of Defense or by any officer or official of the United States
designated by the Secretary for that purpose." 10 U.S.C. § 948h. Crawford, a
former judge of the United States Court of Appeals for the Armed Forces, was
so designated by the Defense Secretary. The convening authority refers the
charges against the accused for trial by military commission, details the
members of the commission and approves or disapproves the findings and
sentence of the commission. Id. §§ 948i(b), 950b; cf. Hamdan,
548 U.S. at 647-49 (Kennedy, J., concurring) (explaining role of convening
authority under UCMJ).

[fn5] The Government argued for plain-error review before the CMCR, in its
original brief to a panel of this Court and in its brief to the en banc
court. See Bahlul, 820 F.Supp.2d at 1256-58; Br. of the United States 65,
Bahlul v. United States, No. 11-1324 (D.C. Cir. May 16, 2012) (Panel Br.);
Br. of the United States 63, Bahlul v. United States, No. 11-1324 (D.C. Cir.
July 10, 2013) (E.B. Br.). We reject Bahlul's contention that the Government
abandoned its forfeiture argument by conceding in its supplemental brief to
the panel after Hamdan II that Bahlul's convictions should be vacated. That
brief was directed to a panel of this Court, which was bound by Hamdan II's
avoidance of the ex post facto issue. See Hamdan II, 696 F.3d at 1248 n.7.
Only at the en banc stage was it possible for the Government to attack
Hamdan II's statutory construction and therefore put the Ex Post Facto
Clause — and the applicable standard of review — back in play.

[fn6] Three of our colleagues cite Rules 905 and 907 of the Rules of
Military Commissions for the notion that Bahlul's ex post facto argument is
"not forfeitable." Opinion of Judge Kavanaugh (Kavanaugh Op.) 31; accord
Opinion of Judge Rogers (Rogers Op.) 26-27; Opinion of Judge Brown (Brown
Op.) 2. Bahlul's briefs do not mention these rules or suggest this argument.
Moreover, Rules 905 and 907 both explicitly refer to waiver, see MANUAL FOR
MILITARY COMMISSIONS, pt. II, at 83-84, 87 (2007), whereas we conclude
instead that Bahlul forfeited his argument. "Although jurists often use the
words interchangeably," Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004),
waiver and forfeiture are not the same, see Olano, 507 U.S. at 733; see alsoUnited States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999) (explaining
difference while interpreting similar provision in Federal Rules of Criminal
Procedure regarding waiver of pretrial motions). Nor is Bahlul's ex postfacto argument "jurisdictional." See Rogers Op. 26; Brown Op. 2; Kavanaugh
Op. 31. As discussed infra pp. 16-17, the 2006 MCA explicitly confers
jurisdiction on military commissions to try the charged offenses. The
question whether that Act is unconstitutional does not involve "'the courts'
statutory or constitutional power to adjudicate the case.'" United States v.Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for a BetterEnv't, 523 U.S. 83, 89 (1998)); United States v. Williams, 341 U.S. 58, 66
(1951) ("Even the unconstitutionality of the statute under which the
proceeding is brought does not oust a court of jurisdiction."); Lamar v.United States, 240 U.S. 60, 65 (1916) ("The objection that the indictment
does not charge a crime against the United States goes only to the merits of
the case."); see also United States v. Delgado-Garcia, 374 F.3d 1337,
1342-43 (D.C. Cir. 2004) (explaining limits of so-called "Blackledge/Menna"
exception relied on by Bahlul). Nor are we persuaded that Bahlul's ex postfacto argument is non-forfeitable because it amounts to an argument that the
indictment fails to "allege an offense." Rogers Op. 27; Kavanaugh Op. 32.
Failure to state an offense is simply another way of saying there is a
defect in the indictment — as evidenced by Rule 907's cross-reference to
Rule 307(c), which sets forth the criteria for charges and specifications.
See MANUAL FOR MILITARY COMMISSIONS, pt. II, at 15-16; see alsoDelgado-Garcia, 374 F.3d at 1341-42 ("[T]he question of an indictment's
failure to state an offense is an issue that goes to the merits of a
case...."). As Cotton makes clear, such a claim can be forfeited.
535 U.S. at 630-31.

[fn8] The legislative history is overwhelmingly in favor of retroactive
application of the MCA's provisions as a response to Hamdan. See, e.g., 152
CONG. REC. H7533 (daily ed. Sept. 27, 2006) (statement of Rep. Hunter) ("I
can't think of a better way to honor the fifth anniversary of September 11
than by establishing a system to prosecute the terrorists who on that day
murdered thousands of innocent civilians...."); id. ("Without [the 2006
MCA], the United States has no effective means to try and punish the
perpetrators of September 11, the attack on the USS Cole and the embassy
bombings."); id. at H7536 (statement of Rep. Saxton) ("We have carefully
narrowed and crafted the provisions of this bill to enable the United States
to prosecute the perpetrators of the 1998 bombings of the American embassies
in Kenya and Tanzania, the 2000 attack on the USS Cole, and other crimes
that have been committed."); id. ("Importantly, this bill allows, as all
Americans believe it should, the criminal prosecutions of those who
purposefully and materially supported [the 9/11 conspiracy]."); id. at H7545
(statement of Rep. Sensenbrenner) ("[The 2006 MCA ] is about prosecuting the
most dangerous terrorists America has ever confronted ... like Khalid Sheik
Mohammed, the mastermind of the 9/11 attacks, or Ahbd al-Nashiri, who
planned the attack on the USS Cole."); id. at H7552 (statement of Rep.
Boehner); id. at S10243 (statement of Sen. Frist) ("Until Congress passes
[the 2006 MCA], terrorists such as Khalid Shaikh Mohammed cannot be tried
for war crimes...."); cf. id. at H7536 (statement of Rep. Skelton) (opposing
2006 MCA because it "creates" "ex post facto laws").

[fn9] Were we to decide this issue de novo, Judge Henderson would conclude
that the Ex Post Facto Clause does not apply in cases involving aliens
detained at Guantanamo, for the reasons stated in her separate concurring
opinion. Chief Judge Garland and Judges Tatel and Griffith would conclude
that the Clause does apply in such cases, for the reasons stated in the
first two paragraphs of Part II.B of Judge Rogers's opinion and in Note 3 of
Judge Kavanaugh's opinion.

[fn10] Specifically, the 2006 MCA provides: "Any person subject to this
chapter who conspires to commit one or more substantive offenses triable by
military commission under this chapter, and who knowingly does any overt act
to effect the object of the conspiracy, shall be punished...."
10 U.S.C. § 950v(b)(28). The murder of protected persons is the
"intentional[]" killing of one or more "protected persons." Id. §
950v(b)(1). A protected person is "any person entitled to protection under
one or more of the Geneva Conventions, including ... civilians not taking an
active part in hostilities." Id. § 950v(a)(2)(A).

[fn11] Likewise, the greater maximum sentence provided in the 2006 MCA — the
death penalty, as opposed to a maximum of life imprisonment under section
2332(b) — does not present an ex post facto problem. The Government did not
seek the death penalty, see Trial Tr. 958, and the military judge's
instructions to the commission before sentencing specifically declared that
"[t]he maximum punishment that may be adjudged in this case is confinement
for life," id. at 949. Further, the 2006 MCA requires a 12-member military
commission if the death penalty is sought, see10 U.S.C. § 949m(c), and
Bahlul's commission had only nine members, see Trial Tr. 285. There was
therefore no risk that the greater sentence included in the 2006 MCA
affected Bahlul's sentence. See Peugh, 133 S.Ct. at 2082 ("The touchstone of
this Court's inquiry is whether a given change in law presents a sufficient
risk of increasing the measure of punishment attached to the covered
crimes." (quotation marks omitted)).

[fn12] To be clear, Bahlul was convicted of conspiracy as a stand-alone
offense that does not depend upon the completion of an object offense. See
Trial Tr. 848. He was not charged with conspiracy as a theory of liability
for a completed crime. See Trial Tr. 109-12 (Government amended charge by
striking allegation that Bahlul joined "an enterprise of persons who share
the common criminal purpose that involved ... the commission ... of one or
more substantive offenses"); see also United States v. Ali, 718 F.3d 929,
941 (D.C. Cir. 2013) (noting difference between conspiracy as stand-alone
offense and conspiracy as theory of liability).

[fn13] The Hamdan plurality did not expressly decide whether section 821's
reference to the "law of war" is limited to the international law of war.
See Hamdan, 548 U.S. at 604-13 (plurality).

[fn14] The Hamdan plurality interpreted this precedent as convicting the
conspirators only of the completed offense of assassination, not inchoate
conspiracy. Hamdan, 548 U.S. at 604 n.35 (plurality). But see id. at 699
n.12 (Thomas, J., dissenting) (finding it clear that inchoate conspiracy was
tried).

[fn15] Some doubt about the precise nature of the charge also appears in the
transcript of the conspirators' trial. Thomas Ewing, counsel for several of
the defendants, objected to the ambiguity of the charge, stating that
"[t]here is but one charge, in form, against the accused; but, in fact,
there seem to be four charges, each alleging the commission of a separate
and distinct offense." THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL
OF THE CONSPIRATORS, supra, at 244. He listed what he perceived to be the
four offenses charged: conspiracy, traitorously murdering President Lincoln,
traitorously assaulting with intent to kill Secretary of State William
Seward and lying in wait with intent to traitorously murder then-Vice
President Johnson. Id. at 244-45. The Judge Advocate responded that "[t]he
general allegation is a conspiracy" and that "[t]he pleadings proceed, after
averring this conspiracy, ... to set forth clearly and specifically the part
which it is believed and alleged each one of them took in the execution of
that conspiracy." Id. at 245; see also id. at 246-47 (further discussion of
the charge).

[fn16] William Winthrop — the Blackstone of military law — also concluded
that conspiracy is an offense that is "both a crime against society and a
violation of the laws of war." WINTHROP, MILITARY LAW AND PRECEDENTS, supra,
at 842; accord WILLIAM WINTHROP, A DIGEST OF OPINIONS OF THE JUDGE ADVOCATE
GENERAL OF THE ARMY 328-29 (1880) ("[c]onspiracy by two or more to violate
the laws of war by destroying life or property in aid of the enemy" is an
"offence[] against the laws and usages of war"). That said, although
Winthrop based that conclusion in part on the Lincoln conspirators' case, he
also relied on Civil War-era field orders. WINTHROP, MILITARY LAW AND
PRECEDENTS, supra, at 839 & n.5 (explaining different bases of military
jurisdiction and citing cases of Henry Wirz, William Murphy, G. St. Leger
Grenfel and others as examples of criminal conspiracies tried by military
commission on combination of jurisdictional bases). The field orders lack
the high-level Executive Branch consultation of the Lincoln conspirators'
case, however, and give us pause for additional reasons discussed infra p.
46.

[fn17] The Hamdan plurality thought Quirin suggested "that conspiracy is not
a violation of the law of war" because the Court's "analysis ... placed
special emphasis on the completion of [another charged] offense; it took
seriously the saboteurs' argument that there can be no violation of a law of
war — at least not one triable by military commission — without the actual
commission of ... a 'hostile and warlike act.'" 548 U.S. at 606-07
(plurality).

[fn18] The 2006 MCA provides: "Any person subject to this chapter who
provides material support or resources, knowing or intending that they are
to be used in preparation for, or in carrying out, an act of terrorism ...,
or who intentionally provides material support or resources to an
international terrorist organization engaged in hostilities against the
United States, knowing that such organization has engaged or engages in
terrorism ..., shall be punished...." 10 U.S.C. § 950v(b)(25). The provision
cross-references the Act's prohibition of "terrorism," which is defined as
an act that "kills or inflicts great bodily harm on one or more protected
persons, or ... that evinces a wanton disregard for human life, in a manner
calculated to influence or affect the conduct of government or civilian
population by intimidation or coercion, or to retaliate against government
conduct." Id. § 950v(b)(24).

[fn20]See also Hamdan, 548 U.S. at 602 n.34 (plurality) (explaining that
because of "vagueness" concerns, "caution ... must be exercised in the
incremental development of common-law crimes"); Hamdan II, 696 F.3d at 1250
n.10 (similar).

[fn21] In reviewing this Civil War precedent, we hold only that it does not
sanction trying material support by military commission.

[fn22] Even the Government is dubious of its argument: Executive Branch
officials previously acknowledged in prepared congressional testimony that
"there are serious questions as to whether material support for terrorism or
terrorist groups is a traditional violation of the law of war." Legal IssuesRegarding Military Commissions and the Trial of Detainees for Violations ofthe Law of War: Hearing Before the S. Comm. on Armed Services, 111th Cong.
12 (2009) (statement of David Kris, Assistant Attorney General, National
Security Division, Department of Justice); see also id. at 9 (statement of
Jeh Johnson, General Counsel, Department of Defense) ("After careful study,
the administration has concluded that appellate courts may find that
'material support for terrorism'"an offense that is also found in Title
18"is not a traditional violation of the law of war.").

[fn23] Unlike with conspiracy, the Government has not identified a
pre-existing federal criminal statute that might cure any ex post facto
aspect of Bahlul's material support conviction. The Government cites
18 U.S.C. § 2339A, which criminalizes providing material support or
resources knowing they are to be used in a violation of section 2332, but
that offense was not made extraterritorial until October 26, 2001. See Pub.
L. No. 107-56, § 805(a)(1)(A), 115 Stat. 272, 377. Although Bahlul was not
captured until December 2001, nearly all of the conduct of which he was
convicted took place before September 11, 2001. The only overt act that
necessarily occurred after September 11 was Bahlul's research on the
economic effects of the attack. The record does not reflect, however,
whether Bahlul committed that or any other act of material support
constituting a violation of section 2339A after October 26, 2001. This
charge, then, is unlike the conspiracy charge, where Bahlul expressly
conceded and the jury necessarily found the two omitted elements.

[fn24] The 2006 MCA provides: "Any person subject to this chapter who
solicits or advises another or others to commit one or more substantive
offenses triable by military commission under this chapter shall ... be
punished...." 10 U.S.C. § 950u.

[fn25] As with material support, we cannot conclude that a pre-existing
federal statute might cure any ex post facto aspect of Bahlul's solicitation
conviction. The Government notes that, when Bahlul's conduct occurred,
18 U.S.C. § 373 criminalized solicitation of another person to "engage in
conduct constituting a felony that has as an element the use, attempted use,
or threatened use of physical force against property or against the person
of another." The Government's brief does not identify an offense that Bahlul
solicited, however, which it must do for us to compare the elements of a
pre-existing criminal offense with the elements of the charge under the
MCA.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I write separately to emphasize, for me, the critical nature of the
Government's concession that the Ex Post Facto Clause protects Bahlul. Had
the Government not conceded the point and the Court not decided to act on
the concession, cf. Young v. United States, 315 U.S. 257, 258-59 (1942), I
would have reached a different conclusion. I briefly explain why.

I. It Is Not "Plain" That the Ex Post Facto Clause Protects Bahlul

"'Plain' is synonymous with 'clear' or, equivalently, 'obvious.'" UnitedStates v. Olano, 507 U.S. 725, 734 (1993). Put another way, "the error must
be 'so plain the trial judge [*32] and prosecutor were derelict in countenancing
it, even absent the defendant's timely assistance in detecting it.'" UnitedStates v. Saro, 24 F.3d 283, 286 (D.C. Cir. 1994) (quoting United States v.Frady, 456 U.S. 152, 163 (1982)). An error meets this high standard only if
"its erroneous character" is established by "a clear precedent in the
Supreme Court or this circuit." United States v. Terrell, 696 F.3d 1257,
1260 (D.C. Cir. 2012). Indeed, "[r]arely do we find an error to be plain
where 'this court has not ruled on the question.'" United States v. Laureys,
653 F.3d 27, 32-33 (D.C. Cir. 2011) (per curiam) (quoting United States v.Thomas, 896 F.2d 589, 591 (D.C. Cir. 1990)); see also United States v.Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993) (error may be plain even in absence
of controlling precedent if trial court failed to follow "legal norm[ that
is] absolutely clear (for example, because of the clarity of a statutory
provision or court rule)"). To be "plain," the error must be clear or
obvious at the time of appeal. Henderson v. United States, 133 S.Ct. 1121,
1130-31 (2013); United States v. Miller, 738 F.3d 361, 372 (D.C. Cir. 2013).

Bahlul contends that his convictions are unconstitutional because the 2006
MCA, as applied to him, is an ex post facto law.
Even assuming that Bahlul is correct, the error is not plain because there
is no holding by any court that an unlawful alien enemy combatant detained
abroad is entitled to the protections of the Ex Post Facto Clause. Before
Boumediene, Johnson v. Eisentrager, 339 U.S. 763 (1950), and United Statesv. Verdugo-Urquidez, 494 U.S. 259 (1990), "were thought to be the
controlling Supreme Court cases on the Constitution's application to aliens
abroad." Rasul v. Myers, 563 F.3d 527, 531 (D.C. Cir. 2009) (per curiam). In
Eisentrager, the Supreme Court held that the Fifth Amendment did not apply
to aliens with neither property nor presence in the United States.
339 U.S. at 784. Verdugo-Urquidez, relying on Eisentrager, held that the
Fourth Amendment did not apply to such aliens. 494 U.S. at 269, 273-75.
Other Supreme Court opinions similarly suggested that the Constitution did
not apply outside the sovereign United States. Zadyvas v. Davis,
533 U.S. 678, 693 (2001); Kwong Hai Chew v. Colding, 344 U.S. 590, 597 n.5
(1953); United States v. Belmont, 301 U.S. 324, 332 (1937); United States [**26] v.Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936). We have followed
those precedents consistently, recognizing that the Fifth Amendment did not
extend beyond the boundaries of the United States. See, e.g., Jifry v. FAA,
370 F.3d 1174, 1182-83 (D.C. Cir. 2004); 32 Cnty. Sovereignty Comm. v. Dep'tof State, 292 F.3d 797, 799 (D.C. Cir. 2002); Harbury v. Deutch,
233 F.3d 596, 603-04 (D.C. Cir. 2000), rev'd on other grounds sub nom.Christopher v. Harbury, 536 U.S. 403 (2002); People's Mojahedin Org. of Iranv. U.S. Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999).

In Boumediene, the Supreme Court for the first time in our history
extended a constitutional protection to an alien located outside the
sovereign territory of the United States. 553 U.S. at 770. But the Supreme
Court "explicitly confined its constitutional holding 'only' to the
extraterritorial reach of
the Suspension Clause" and "disclaimed any intention to disturb existing law
governing the extraterritorial reach of any constitutional provisions, other
than the Suspension Clause." [*33]Rasul, 563 F.3d at 529 (quoting Boumediene,
553 U.S. at 795). Indeed, it remains the law of this circuit that, after
Boumediene, aliens detained at Guantanamo may not invoke the protections of
the Due Process Clause of the Fifth Amendment. See Kiyemba v. Obama,
555 F.3d 1022, 1026 & n.9 (D.C. Cir. 2009) ("due process clause does not
apply to aliens without property or presence in the sovereign territory of
the United States" and Guantanamo "is not part of the sovereign territory of
the United States"), vacated and remanded, 559 U.S. 131 (2010), reinstatedin relevant part, 605 F.3d 1046 (D.C. Cir. 2010), cert. denied,
131 S.Ct. 1631 (2011); see also Al-Madhwani v. Obama, 642 F.3d 1071, 1077
(D.C. Cir. 2011); Kiyemba v. Obama, 561 F.3d 509, 518 n.4 (D.C. Cir. 2009)
(Kavanaugh, J., concurring); Cuban Am. Bar Ass'n, Inc. v. Christopher,
43 F.3d 1412, 1428 (11th Cir. 1995) (Fifth Amendment does not apply to
Cubans and Haitians temporarily housed at Guantanamo). Whether Boumediene in
fact portends a sea change in the extraterritorial application of the
Constitution writ large, we are bound to take the Supreme Court at its word
when it limits its holding to the Suspension Clause. See Rodriguez de Quijasv. Shearson/Am. Express, Inc., 490 U.S. 477, 480-81 (1989). Thus, the
extraterritorial inapplicability of the Ex Post Facto Clause remains as it
was before Boumediene.

Bahlul points to no case from the Supreme Court or any court of appeals,
nor to any other "absolutely clear" legal norm, opining that the Ex PostFacto Clause applies beyond the sovereign territory of the United States.
Finding such a precedent would be a remarkable feat inasmuch as Boumediene
expressly recognized that it was the first case to apply any constitutional
provision to aliens located beyond
our sovereign territory: "It is true that before today the Court has never
held that noncitizens detained by our Government in territory over which
another country maintains de jure sovereignty have any rights under our
Constitution." 553 U.S. at 770. Because there is no clear precedent
establishing that the Ex Post Facto Clause applies to aliens held at
Guantanamo, prosecuting Bahlul under the 2006 MCA cannot constitute plain
constitutional error.

II. The Ex Post Facto Clause Does Not Protect Bahlul

Even if our review were de novo, I would conclude that the Ex Post Facto
Clause does not apply to aliens detained at Guantanamo. As discussed [**27] above,
only one constitutional protection applies to Guantanamo even after
Boumediene. 553 U.S. at 795 ("Our decision today holds only that petitioners
before us are entitled to seek the writ."); see Rasul, 563 F.3d at 529.
Boumediene is the law and therefore it must be followed. But before 2008,
the Constitution did not apply to aliens without property or presence in the
United States. After 2008, the Suspension Clause — and only the Suspension
Clause — protects only those aliens detained on the southeastern tip of an
island outside the sovereign United States. We have previously said that,
"[a]s a novel constitutional development, we are loath to expand
Boumediene's reach without specific guidance from the Supreme Court,
particularly where expansion would carry us further into the realm of war
and foreign policy." Maqaleh v. Hagel, 738 F.3d 312, 336 n.16 (D.C. Cir.
2013). I see no reason to abandon that caution.

Finally, we must remember the who, what and where of this case. Bahlul is
an alien unlawful enemy combatant who — like [*34] Hitler's Goebbels — led Osama
bin Laden's propaganda operation and freely admitted his role in the 9/11
atrocities.
He was tried outside the sovereign United States for war crimes. During the
post-World War II Nuremberg trials several defendants raised ex post facto
objections but they were rejected as "sheer absurdity" under international
law. 3 Trials of War Criminals Before the Nuremberg Military Tribunals: "TheJustice Case" 975 (1951). I cannot agree that Bahlul is entitled to domestic
constitutional protections — to which he would not be entitled under
international law — simply because his war crimes trial was held at an
American naval base located in Cuba.

Accordingly, were it not for the Government's concession that the Ex PostFacto Clause protects Bahlul, I would reach the issue and conclude that it
does not.[fn1]

[fn1] Responding briefly to Judge Kavanaugh's concurrence, and with respect,
I believe he is a solo source of confusion. He persists in reading the
majority opinion to resuscitate Hamdan II. Cf. Kavanaugh Op. 1. He is wrong.
I leave it to the careful reader to discern, not surprisingly, that the
majority expressly overrules Hamdan II's statutory holding. See Majority Op.
15. Judge Kavanaugh then pivots, calling the majority's decision to
"'overrule[]'" Hamdan II's "statement" "a meaningless exercise." Kavanaugh
Op. 27. Despite his best efforts at revisionism, the fact of the matter is
that Hamdan II was wrongly decided and today the majority so holds.

ROGERS, Circuit Judge, concurring in the judgment in part and dissenting.

Ali Hamza Ahmad Suliman al Bahlul, a self-avowed member of al Qaeda who
has been held in the Naval Base at Guantanamo Bay, Cuba since 2002, was
convicted and sentenced to life imprisonment by a military commission for
three offenses under the Military Commissions Act of 2006. The question
before the en banc court is whether these charges support the jurisdiction
of the military commission. See Order, Apr. 23, 2013. Because Bahlul's
conduct occurred prior to the enactment of the 2006 Act, and the military
commission lacked jurisdiction to try these non-law-of-war offenses,
Bahlul's convictions must be vacated. The court is vacating Bahlul's
convictions for material support and solicitation. For the following
reasons, I would also vacate Bahlul's conviction for inchoate conspiracy.

I.

In Hamdan v. Rumsfeld, 548 U.S. 557, 590 (2006), the Supreme Court
observed that "[t]he military commission, a tribunal neither mentioned in
the Constitution nor created by statute, was born of military necessity."
Historically, such commissions have been used in three situations. Id. at
595 (plurality op.); id. at 683 (Thomas, J., dissenting). First, they have
substituted for civilian courts where martial law has been declared. Second,
they have tried civilians in occupied enemy territory or territory [**28] regained
from an enemy where civilian government cannot function. Third, military
commissions have been convened to try "enemies who in their attempt to
thwart or impede our military effort have violated the law of war." Ex ParteQuirin, 317 U.S. 1, 28-29 (1942). This third type of military commission is
designed "to determine, typically on the battlefield itself, whether the
defendant has violated the law of war." Hamdan, 548 U.S. at 596-97
(plurality op.); cf. id. at 641 (Kennedy, J., concurring in part). Its
jurisdiction is thus limited
to "offenses cognizable during time of war." Id. at 596 (plurality op.); seeid. at 641 ([*35] Kennedy, J., concurring in part).

"Trial by military commission raises separation-of-powers concerns of the
highest order." Id. at 638 (Kennedy, J., concurring in part). "Every
extension of military jurisdiction is an encroachment on the jurisdiction of
the civil courts, and, more important, acts as a deprivation of the right to
jury trial and of other treasured constitutional protections." Reid v.Covert, 354 U.S. 1, 21 (1957) (plurality op.); see id. at 41 (Frankfurter,
J., concurring in result); see also THE FEDERALIST NO. 47, at 324 (James
Madison) (J. Cooke ed., 1961) (warning against the "tyranny" created through
the "accumulation of all powers legislative, executive and judiciary in the
same hands"). A statute conferring judicial power outside the Article III
courts "may no more lawfully chip away at the authority of the Judicial
Branch than it may eliminate it entirely. 'Slight encroachments create new
boundaries from which legions of power can seek new territory to capture.'"
Stern v. Marshall, 131 S.Ct. 2594, 2620 (2011) (quoting Reid, 354 U.S. at 39
(plurality op.)). Even when confronted with the exigencies of war, "[the
Court] cannot compromise the integrity of the system of separated powers and
the role of the Judiciary in that system." Id.

The question presented by Bahlul's appeal is the effect of the 2006 Act on
these settled principles. Given "the duty which rests on the courts, in time
of war as well as in time of peace, to preserve unimpaired the
constitutional safeguards of civil liberty," Quirin, 317 U.S. at 19, this
court must assure itself that the military commission had jurisdiction over
the charged offenses of which Bahlul was convicted. See Hamdan,
548 U.S. at 611-12 (plurality op.); id. at 683 (Thomas, J., dissenting);
Application of Yamashita, 327 U.S. 1, 17-18 (1946); Quirin, 317 U.S. at 25;
10 U.S.C. § 950g(d). The court properly considers a challenge to the
jurisdiction of a military
commission at any time it is raised. See R.M.C. 907(b)(1), THE MANUAL FOR
MILITARY COMMISSIONS, at II-87 (2007) ("A charge or specification shall be
dismissed at any stage of the proceedings if: (A) The military commission
lacks jurisdiction to try the accused for the offense"); cf. FED.R.CIV.P.
12(h)(3) ("If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action"); Arbaugh v. Y&H Corp.,
546 U.S. 500, 506 (2006) ("The objection that a federal court lacks
subject-matter jurisdiction, see FED.R.CIV.P. 12(b)(1), may be raised by a
party, or by a court on its own initiative, at any stage in the litigation,
even after trial and the entry of judgment.").

A.

Congress enacted the Military Commissions Act of 2006, Pub. L. No.
109-366, 120 Stat. 2600, to authorize the establishment of law-of-war
military [**29] commissions and to establish procedures governing their use. The
2006 Act specifies the "[c]rimes triable by military commissions,"
10 U.S.C. § 950v, including offenses such as attacking civilians, id.§
950v(b)(2), taking hostages, id. § 950v(b)(7), and torture, id.§ 950(b)(11).
Congress included an unequivocal statement of the purpose and effect of its
enactment:

(a) PURPOSE. — The provisions of this subchapter codify offenses
that have traditionallybeen triable by military commissions. This
chapter does not establish new crimes that did not exist before its
enactment, but rather codifies [*36] those crimes for trial by military
commission.

(b) EFFECT. — Because the provisions of this subchapter (including
provisions that incorporate definitions in other provisions of law)
are declarative of existing law, they do not preclude trial for
crimes
that occurred before the date of the enactment of this chapter.

Id. § 950p (emphases added). The court must "presume that [the] legislature
says in a statute what it means and means in a statute what it says there."
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The words used by
Congress are to be understood in their ordinary, normal meaning, absent a
contrary indication. See Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034,
2042 (2012).

The reference in Congress's plain and unequivocal statement of purpose to
"offenses that have traditionally been triable by military commissions,"
10 U.S.C. § 950p(a) (emphasis added), clearly indicates its intent to
confine military commissions to their traditional role and jurisdiction, not
to overturn settled principles. "Traditionally" is the adverbial form of the
word "traditional," which means "long-established" or "habitually done,
used, or found." THE NEW OXFORD AMERICAN DICTIONARY 1785 (2d ed. 2005). A
"tradition[]" is readily identified and found in established practices; it
is not based on a "few scattered ... anomalies." NLRB v. Noel Canning, No.
12-1281, slip op. at 21 (U.S. June 26, 2014). To quote Henry James: "[I]t
takes an endless amount of history to make even a little tradition." THE
AMERICAN SCENE 164 (1907). Thus sang Tevye in "Fiddler on the Roof" of
"Tradition" that has lasted for generations. Jerry Bock & Sheldon Harnick,
Prologue - Tradition, on FIDDLER ON THE ROOF (RCA Victor 1964).

Congress's unusual "effect" statement, that the 2006 Act's provisions are
"declarative of existing law," 10 U.S.C. § 950p(b), amplifies its
instruction in the statement of purpose to look to offenses traditionally
triable by military commissions. Here, Congress expresses sensitivity to the
implicit
constitutional concerns arising from authorizing military commissions to try
persons for conduct predating the 2006 Act. Its statement that the 2006 Act
permits retroactive application only for offenses previously triable by
military commission accords with the established "presumption against
statutory retroactivity," and is the very antithesis of a contrary
"unambiguous directive" or "express command" requiring retroactivity.
Landgraf v. USI Film Products, 511 U.S. 244, 263, 270, 280 (1994); see alsoCalder v. Bull, 3 Dall. 386, 390 (1798) (opinion of Chase, J.); Martin v.Hadix, 527 U.S. 343, 354 (1999); Lindh v. Murphy, 521 U.S. 320, 325 (1997).
This presumption is "deeply rooted [**30] in our jurisprudence, and embodies a
legal doctrine centuries older than our Republic." Landgraf,
511 U.S. at 265.

Ambiguity, if any, would arise, therefore, only in identifying the
offenses that "have traditionally been triable by military commissions,"
10 U.S.C. § 950p(a), and the Supreme Court has provided clear guidance on
the resolution of this question. Congress's statement that the offenses it
has listed are "declarative of existing law," id. § 950p(b), is a legal
conclusion that is subject to a judicial declaration of what the law is. SeeMarbury v. Madison, 5 U.S. 137, 177 (1803); see also Noel Canning, No.
12-1281, slip op. at 7. "[A] mistaken opinion of the legislature concerning
the law[] does [*37] not make law." Postmaster-General v. Early, 25 U.S. 136, 148
(1827); see also United States v. Stafoff, 260 U.S. 477, 480 (1923) (Holmes,
J). Determining what offenses were "traditionally" tried by military
commissions according to "existing law" at the time of the conduct
underlying Bahlul's convictions carries out Congress's expressly stated
purpose, and is not an attempt to rewrite the 2006 Act's listing of offenses
because Congress was mistaken, see Op. at 25.

At the time of Bahlul's charged conduct, the relevant statute
was Article 21 of the Uniform Code of Military Justice, 10 U.S.C. § 821
(2000). See Hamdan, 548 U.S. at 592-93; see also Yamashita, 327 U.S. at 7;
Quirin, 317 U.S. at 28. It confers jurisdiction on military commissions over
"offenders or offenses that by statute or by the law of war may be tried by
military commissions." 10 U.S.C. § 821 (2000). The only offenses then listed
by statute were spying and aiding the enemy, 10 U.S.C. §§ 904, 906 (2000).
Because Bahlul was not charged with either of these offenses, the military
commission trying him had jurisdiction only over violations triable by
military commission under "the law of war." See Hamdan, 548 U.S. at 613;
Yamashita, 327 U.S. at 17; Quirin, 317 U.S. at 29.

For more than seventy years, the Supreme Court has interpreted the "law of
war" to mean the international law of war. In Quirin, examining the
predecessor statute to 10 U.S.C. § 821 — Article 15 of the Articles of War,
which similarly referenced "offenders or offenses that by statute or by the
law of war may be triable by such military commissions" — the Court stated
that in Article 15 Congress had "sanction[ed], within constitutional
limitations, the jurisdiction of military commissions to try persons and
offenses which, according to the rules and precepts of the law of nations,
and more particularly the law of war, are cognizable by such tribunals."
317 U.S. at 27-28 (emphasis added). The Court reaffirmed its understanding
that the law of war is a "branch of international law," id. at 29, four
years later in Yamashita. Discussing the jurisdiction of the military
commission, the Court looked to the violations of the law of war "recognized
in international law" and consulted the Hague Conventions and the Geneva
Conventions. Yamashita, 327 U.S. at 14-16. "[W]hen a new legal regime
develops out of an identifiable predecessor, it is reasonable to look to the
precursor in fathoming the new law." Johnson v. United States, 529 U.S. 694,
710 (2000); see also Hamilton v. Rathbone, 175 U.S. 414, 421 (1899).
More recently, in addressing Section 821 in Hamdan, the Court adhered to
Quirin and Yamashita by looking to the body of international law governing
armed conflict. See Hamdan, 548 U.S. at 602-03 (plurality [**31] op.); id. at 641
(Kennedy, J., concurring in part); see also Memorandum from the Office of
Legal Counsel to the Attorney General 28, 30 (July 16, 2010), printed in NewYork Times v. United States, No. 13-422-cv, slip op. app. A (2d Cir. June
23, 2014) (describing the law of war as international law).

B.

To demonstrate that the offenses of which Bahlul was convicted are
violations of the international law of war and within the jurisdiction of
his military commission, Supreme Court precedent indicates that the
"Government must make a substantial showing that the crime for which it
seeks [*38] to try a defendant by military commission is acknowledged to be an
offense against the law of war." Hamdan, 548 U.S. at 603 (plurality op.).
For instance, in Quirin, the Court concluded that a military commission had
jurisdiction to try "unlawful combatants" who surreptitiously entered the
United States, discarding their uniforms on arrival, for the purpose of
committing hostile acts involving destruction of life or property.
317 U.S. at 35-36. This charge, the Court explained, "has been so recognized
in practice both here and abroad, and has so generally been accepted as
valid by authorities on international law that we think it must be regarded
as a rule or principle of the law of war." Id. Similarly, in Yamashita, the
Supreme Court held that a military commission had jurisdiction to try an
invading Commanding General of the Imperial Japanese Army for breach of his
duty to control the members of his command, by permitting them to commit
atrocities against civilian populations and prisoners of war, because the
charge "plainly" alleged a violation of the law of war, the purpose of which
is "to protect civilian populations and prisoners of war from brutality."

The government has repeatedly conceded that the three offenses of which
Bahlul was convicted are not, and were not at the time of Bahlul's conduct,
law-of-war offenses under international law. See Resp't's Br. 34 (regarding
conspiracy only); Resp't's Pet. for Reh'g En Banc 1-2 ("the charges are not
sustainable under Hamdan II because they have not attained recognition at
this time as offenses under customary international law"); Resp't's
pre-Hamdan II Panel Br. 57 ("the offenses of conspiracy, solicitation, and
providing material support to terrorism have not attained international
recognition at this time as offenses under customary international law");
Oral Argument Tr. 15 (Sept. 30, 2013) ("we have conceded that [all three
offenses] are not violations of the international law of war"). This should
end the matter given Congress's stated purpose and effect in the 2006 Act,
10 U.S.C. § 950p. Instead, departing from the instruction of more than half
a century of Supreme Court precedent, the government contends that the enbanc court can affirm Bahlul's convictions on the basis of a U.S. common (or
U.S. domestic) law of war. Because the court is vacating Bahlul's
convictions for material support for terrorism and solicitation but not for
inchoate conspiracy, see Op. at 3, I need address only Bahlul's
jurisdictional challenges to his conviction for inchoate conspiracy. It
bears noting, however, [**32] that the court's analysis of the infirmities of the
government's U.S. common law theory, based on Civil War military commissions
and field orders, in vacating two of Bahlul's convictions applies no less to
his conviction for inchoate conspiracy. See Op. at 46, 49, 52.

1. The trial record of the law-of-war military commission makes clear
Bahlul was charged and convicted of inchoate conspiracy; his stand-alone
conspiracy conviction did not depend upon proof of the completion of any
object offense (such as
murder) or proof that the overt acts in furtherance of the conspiratorial
agreement of which he was convicted (such as preparing a propaganda video)
were law-of-war offenses.

First, the government elected not to charge Bahlul under the Pinkerton
doctrine under which he could have been found vicariously liable for
reasonably foreseeable substantive crimes committed by his co-conspirators
in furtherance of the conspiracy. See Resp't's Br. 47; Pinkerton v. UnitedStates, 328 U.S. 640 (1946). The government [*39] also did not pursue the theory
that Bahlul had joined a joint criminal enterprise. At the beginning of
Bahlul's trial, the prosecutor moved to strike the charge that Bahlul had
"join[ed] al Qaeda, an enterprise of persons who share the common criminal
purpose that involved, at least in part, the commission or intended
commission of one or more substantive offenses triable by military
commission." Trial Tr. 110.

Second, the trial evidence allowed for conviction of no more than inchoate
conspiracy. The government's evidence consisted of Bahlul's agreement with
Usama bin Laden and other members of al Qaeda to commit law-of-war offenses
and his commission of non-law-of-war, non-criminal overt acts in furtherance
of the agreement. (The government's focus at trial was on Bahlul's role as
an al Qaeda propagandist, in particular, his preparation of a recruitment
video entitled "The Destruction of the American Destroyer U.S.S. Cole.")
None of the overt acts committed in furtherance of the charged conspiracy —
including traveling to Afghanistan with the intent to join al Qaeda,
undergoing military-type training at a training camp sponsored by al Qaeda,
pledging fealty (or "bayat") to Usama bin Laden, or transcribing the martyr
wills of two of the September 11th hijackers — is a law-of-war offense. Even
assuming being armed would have sufficed, the military commission found
Bahlul not guilty of the overt act that he had "armed himself with an
explosive belt, rifle,
and grenades to protect and prevent the capture of Usama bin Laden."

Third, the presiding military judge instructed the members of the military
commission that to find Bahlul guilty of conspiracy, they must find beyond a
reasonable doubt that he knowingly entered into an agreement to commit one
or more substantive offenses triable by military commission and that he
knowingly committed at least one overt act in furtherance of that agreement.
Trial Tr. 845-46. The judge further instructed that proof the object of the
conspiratorial agreement, the substantive law-of-war offense, "actually
occurred [**33] is not required" and "[t]he overt act required for this offense
does not have to be a criminal act." Id. at 848-49. The presiding judge also
confirmed that Bahlul was not being tried on the basis of a joint criminal
enterprise; when he discovered that his written instructions included the
word "enterprise," the judge instructed the military commission members to
strike the words "or enterprise," explaining "that's not before you," id. at
881.

2. The international law of war does not recognize inchoate conspiracy as
a law-of-war offense. Although there are two exceptions — conspiracy to
commit genocide and conspiracy to wage aggressive war (also known as the
commission of crimes against peace), see Hamdan, 548 U.S. at 610 (plurality
op.); 22 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY
TRIBUNAL: NUREMBERG, 14 NOVEMBER 1945 – 1 OCTOBER 1946, at 469 (1948)
("TRIAL OF MAJOR WAR CRIMINALS AT NUREMBERG"); Antonio Cassese,
International Criminal Law 191 (2003); see also Br. of Amici Curiae Int'l
Law Scholars 12-14 — the government does not argue that either applies to
Bahlul.

Treaty law and international courts and tribunals have refused to
recognize inchoate conspiracy as a war crime because
of its potential for conflict with the international law-of-war principle
"that criminal guilt is personal, and that mass punishments should be
avoided." TRIAL OF MAJOR WAR CRIMINALS AT NUREMBERG at 500. Morever, the
Anglo-American concept of conspiracy is not known to some European legal
systems. See Telford Taylor, THE [*40] ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL
MEMOIR 36 (1992) ("Taylor"). Neither the Hague Conventions nor the Geneva
Conventions, which are the "major treaties on the law of war," includes
inchoate conspiracy as an international law-of-war offense. Hamdan,
548 U.S. at 603-04 (plurality op.); see Convention with Respect to the Laws
and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247;
Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907,
36 Stat. 2277, 1 Bevans 631; Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12,
1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,
75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287;
Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts, June
8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

The International Military Tribunal convened at Nuremberg "pointedly
refused to recognize as a violation of the law of war conspiracy to commit
war crimes," Hamdan, 548 U.S. at 610 (plurality op.), concluding that its
charter "does not define as a
separate crime any conspiracy except [**34] the one to commit acts of aggressive
war." TRIAL OF MAJOR WAR CRIMINALS AT NUREMBERG at 469; see also Charter of
the International Military Tribunal, in Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945,
59 Stat. 1544, 82 U.N.T.S. 280; Taylor at 550-53. The Charter addressed the
personal responsibility of the major war criminals of the European Axis. See
Charter arts. 1, 6-8. The Tribunal was concerned that "overbroad application
of the conspiracy principle may drag innocent people into the prosecution's
net." Taylor at 553. The United States Military Tribunals convened to try
additional defendants also concluded that they "ha[d] no jurisdiction to try
any defendant upon a charge of conspiracy considered as a separate
substantive offense." 15 UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS
OF TRIALS OF WAR CRIMINALS 90 (1949) ("LAW REPORTS OF TRIALS OF WAR
CRIMINALS"). In addition, the Charter of the International Military Tribunal
for the Far East did not confer jurisdiction over inchoate conspiracies to
commit war crimes or crimes against humanity, only conspiracy to commit
crimes against peace. See Charter of the International Military Tribunal for
the Far East art. 5, Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20.

Modern statutes defining international law-of-war offenses do not refer to
conspiracy to commit such offenses (other than genocide). See Rome Statute
of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90;
Statute of the International Tribunal for the Former Yugoslavia, adopted by
S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159,
1192; Statute of the International Tribunal for Rwanda, adopted by S.C. Res.
955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602; Statute
of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 138.
Additionally, international tribunals recognizing "joint criminal
enterprise" as a theory of liability for completed law-of-war offenses have
rejected a separate inchoate offense based on "mere membership" or
"conspiring to commit crimes," and instead recognize liability only for
"participation in the commission of the crime." Prosecutor v. Milutinovic,
Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanic's Motion Challenging
Jurisdiction – Joint [*41] Criminal Enterprise, ¶ 26 (Int'l Crim. Trib. for the
Former Yugoslavia, Appeals Chamber, May 21, 2003); Rwamakuba v. Prosecutor,
Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding
Application of Joint Criminal Enterprise to the Crime of Genocide, ¶ 30
(Oct. 22, 2004); see also Br. of Amici Curiae Int'l Law Scholars 8-10.

3. Given this historical background, the government has a heavy burden to
show that Congress's purpose in enacting the 2006 Act extended to inchoate
conspiracy as an "offense[] that ha[s] traditionally been triable by
military commissions," 10 U.S.C. § 950p(a). The government begins by
suggesting that "a systemized body of international law establishing
individual criminal responsibility for specific acts during warfare"
commenced with the Hague Conventions of 1899 and 1907 and "is a relatively
[**35] modern innovation." Resp't's Br. 28 (citing Timothy L.H. McCormack, From SunTzu to the Sixth Committee: The Evolution of an International Criminal LawRegime, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES 31,
43 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997)). It continues by
citing Colonel William Winthrop, referred to by the Supreme Court as the
"Blackstone of Military Law," Hamdan, 548 U.S. at 597 (plurality op.)
(quoting Reid, 354 U.S. at 19 n.38 (plurality op.)), for the proposition
that prior to the adoption of these and later treaties, the "offenses in
violation of the laws and usages of war [consisted of] those principally, inthe experience of our wars, made the subject of charges and trial." Resp't's
Br. 29 (quoting
William Winthrop, MILITARY LAW AND PRECEDENTS 839 (1920) ("Winthrop
PRECEDENTS")). It also points to the reference in Hamdan to "the American
common law of war," 548 U.S. at 613. Resp't's Br. 32. Neither Winthrop nor
Hamdan advance the government's case for sustaining Bahlul's conspiracy
conviction.

First, in discussing the Civil War military commissions relied upon by the
government, Winthrop "excludes conspiracy of any kind from his own list of
offenses against the law of war." Hamdan, 548 U.S. at 608 (plurality op.)
(citing Winthrop PRECEDENTS at 839-40). Instead, Winthrop classifies the
relevant Civil War conspiracy cases either as "[c]rimes and statutory
offenses cognizable by State or U.S. courts, and which would properly be
tried by such courts if open and acting," or as a "combin[ation]" of such
civilian crimes and "violations of the laws and usages of war cognizable by
military tribunals." Winthrop PRECEDENTS at 839 & n.5. Winthrop rejected the
idea that inchoate conspiracy could be triable by law-of-war military
commission, emphasizing that "the jurisdiction of the military commission
should be restricted to cases of offence consisting in overt acts, i.e. in
unlawful commissions or actual attempts to commit, and not in intentions
merely." Id. at 841. In other words, "'overt acts' constituting war crimes
are the only proper subject at least of those military tribunals not
convened to stand in for local courts," Hamdan, 548 U.S. at 608 (plurality
op.) (citing Winthrop PRECEDENTS at 841 & nn.22, 23). The cases cited by the
government reveal that this is the manner in which the Civil War military
[*42] commissions proceeded. See infra pt. I.C.1.

Second, the Supreme Court's reference to "the American common law of war"
in Hamdan, 548 U.S. at 613, is to U.S. military commission tradition and
practice as an additional constraint on, not an alternative basis for,
military commission
jurisdiction under Section 821. The Court stated that the Uniform Code of
Military Justice, which includes Section 821, "conditions the President's
use of military commissions on compliance not only with the American common
law of war, but also with the rest of the [Uniform Code of Military Justice]
itself, insofar as applicable, and with the 'rules and precepts of the law
of nations.'" Id. (quoting Quirin, 317 U.S. at 28). To come within the "law
of war" under Section 821, an offense must constitute both a violation of
the international law of war and a violation of the law of war as
traditionally [**36] recognized in U.S. military commissions. This is necessary
because, as the Court explained in Quirin, there may be

acts regarded in other countries, or by some writers on
international law, as offenses against the law of war which would
not be triable by military tribunal here, either because they are
not recognized by our courts as violations of the law of war or
because they are of that class of offenses constitutionally triable
only by a jury.

317 U.S. at 29. Consequently, in Quirin, Yamashita, and Hamdan the Supreme
Court sought to establish that the relevant offense was a violation of the
law of war under international law and was recognized in U.S. military
commissions. See Quirin, 317 U.S. at 35; Yamashita, 327 U.S. at 15-16;
Hamdan, 548 U.S. at 603 (plurality op.). Under these precedents, the
practice of U.S. domestic military commissions is irrelevant as long as
inchoate conspiracy is not an international law-of-war offense, and the
government conceded that it is not. Of course, to the extent the government
relies on the Military Commissions Act of 2009, which refers to offenses
that have "traditionally been triable under the law of war or otherwisetriable by military commission" to support its argument that the statute
embraces "a class of offenses — lawfully triable in U.S. military commission
practice — that is broader than the group of offenses that are
currently prohibited by the international law of war," Resp't's Br. 28
(quoting 10 U.S.C. § 950p(d) (2009) (emphasis added)), this cannot advance
its position since Bahlul was tried under the 2006 Act.

The legislative history of the 2006 Act also does not advance the
government's position. The Report of the House Armed Services Committee on
H.R. 6054 states "[f]or the reasons stated in Justice Thomas's opinion [in
Hamdan], the Committee views conspiracy [to commit a war crime] as a
separate offense punishable by military commissions." H.R. REP. NO. 109-664,
pt. 1, at 25 (2006). But Justice Thomas expressly acknowledged that
"conspiracy" was understood as a law-of-war offense only when it went
"beyond 'intentions merely,'" and involved "unlawful" overt acts,
548 U.S. at 703 (Thomas, J., dissenting). There was no occasion in Hamdan
for Justice Thomas to address the validity of a conspiracy charge where, as
in Bahlul's case, "the overt act required ... does not have to be a criminal
act," Trial Tr. 849; Justice Thomas observed that Hamdan was "charged with
the overt acts of providing protection, transportation, weapons, and other
services to the enemy, acts which in and of themselves are violations of the
laws of war," 548 U.S. at 704 (citation omitted).
[*43]

C.

Even assuming, contrary to Supreme Court precedent, that a U.S. common law
of war tradition could serve as an independent basis for sustaining
convictions by law-of-war military commissions for offenses that are not
recognized under the international law of war or by then-existing statute,
the government fails to establish a domestic tradition to sustain Bahlul's
inchoate conspiracy conviction. It not only fails to point to evidence
comparable to the abundance of evidence "both here and abroad" relied upon
by the Supreme Court in Quirin, 317 U.S. at 31-35 & nn.10, 12, the
government has not identified
[**37]
a single case where military commission jurisdiction has been sustained on
the basis of a charge of inchoate conspiracy, much less a charge of
conspiracy with instructions defining the limits of the government's burden
of proof that are comparable to those in Bahlul's case.

1. The Civil War cases to which the government points are, in fact,
consistent with Winthrop's position. Further, as the Supreme Court
cautioned, "[t]he Civil War precedents must ... be considered with caution"
because military commissions "operated as both martial law or military
government tribunals and law-of-war commissions" and thus "often charged
hybrid crimes mixing elements of crimes ordinarily triable in civilian
courts (like treason) and violations of the law of war." Hamdan,
548 U.S. at 596 n.27, 609 n.37 (plurality op.); see also Winthrop

PRECEDENTS at 839 & n.5. For example, William Murphy, who was tried by
military commission in 1865, was charged with "[c]onspiracy to burn and
destroy steamboats and other property" and also with "[v]iolati[ng] the laws
and customs of war," by in fact burning and destroying a steamboat and by
secretly crossing enemy lines and attempting to destroy a second boat.
G.C.M.O. No. 107 (1866). These separate charges suggest that Murphy was
tried by a tribunal serving as both a martial law court and a law-of-war
military commission, and that the military commission classified the
conspiracy charge as a civil crime, not as a "violation of the laws and
customs of war." Id. Only this understanding is consistent with the fact
that Murphy's conspiracy conviction was vacated because the civil courts
were open and therefore the military commission "had no jurisdiction of his
person or of his offence." In re Murphy, 17 F. Cas. 1030, 1031, 1032 (1867).
And because Murphy did in fact destroy a steamboat during wartime, his case
provides no support for the government's theory that a Civil War military
tribunal had jurisdiction over conspiracy absent proof, much less absent any
allegation, of a completed substantive law-of-war offense.

Similarly, the case of Henry Wirz, also cited by the government, does not
provide evidence of a tradition on which to base affirmance of Bahlul's
inchoate conspiracy conviction. Confederate Army Captain Wirz was charged
with conspiring to injure the health and destroy the lives of soldiers in
the military service of the United States and "alleged to have personallycommitted a number of atrocities against his victims, including torture,
injection of prisoners with poison, and use of 'ferocious and bloodthirsty
dogs' to 'seize, tear, mangle, and maim the bodies and limbs' of prisoners,
many of whom died as a result." Hamdan, 548 U.S. at 609 (plurality op.)
(citing H.R. Doc. No. 314, 55th Cong., 3d Sess., 785, 789-90 (1899)).
Notably, as the Hamdan plurality explained, the Judge Advocate General
determined that one of Wirz's alleged co-conspirators, R.B. Winder, should
not be tried by military commission because "while the evidence at the trialof Wirz was deemed by the court to implicate him [*44] in the conspiracy against
the lives of all Federal prisoners in rebel hands, no such specific [**38] overtacts of violation of the laws of war are as yet fixed upon [Winder]." Id.
(quoting H.R. Doc. No. 314, 55th Cong., 3d Sess., 783 (1899)) (emphasis in
original opinion). In other words, had Wirz not committed overt acts that
were violations of the law of war, he could not have been tried by military
commission for conspiracy.

The 1865 trial of the Lincoln assassins, "even if properly classified as a
trial by law-of-war commission," Hamdan, 548 U.S. at 604 n.35 (plurality
op.), likewise does not support the government's theory of a U.S. common
law-of-war tradition. The defendants were charged with both "conspiring" to
murder President Lincoln and the completed offense of "maliciously,
unlawfully, and traitorously murdering the said Abraham Lincoln," G.C.M.O.
No. 356 (1865); see Hamdan, 548 U.S. at 604 n.35 (plurality op.) (quoting
H.R. Doc. 314, 55th Cong., 3d Sess., 696 (1899));
see also THE TRIAL: THE ASSASSINATION OF PRESIDENT LINCOLN AND THE TRIAL OF
THE CONSPIRATORS 246-47 (Edward Steers, Jr. ed., 2003). Of utmost
significance, surely, the then-Attorney General, in defending the use of a
military tribunal, treated the charge as alleging the substantive, completed
"offence of having assassinated the President." 11 Op. Atty. Gen. 297, 297
(1865). Furthermore, the district court, in rejecting petitions for a writ
of habeas corpus filed by three of the assassins, described the charge of
conviction as "a conspiracy to commit the military crime [of the
assassination of the Commander in Chief] which one of their number didcommit." Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) (emphasis added).
Recall that in Bahlul's case the prosecution dismissed charges and theories
of vicarious liability.

In sum, the Civil War conspiracy cases, including the trial of the Lincoln
assassins, each, in fact, involved a completed lawof-war offense, not an
inchoate conspiracy. These cases are consistent with Winthrop's description
of such conspiracies as among the "[c]rimes and statutory offenses ... which
would properly be tried by [State or U.S.] courts if open and acting," or
alternatively, as hybrid crimes combining elements of crimes ordinarily
triable in civilian courts and law-of-war offenses. Winthrop PRECEDENTS at
839 & n.5. They offer no reason to depart from Winthrop's contemporary
rejection of inchoate conspiracy as a law-of-war offense.

2. The World War II cases cited by the government also do not establish
historical support for the jurisdiction of law-of-war military commissions
over inchoate conspiracy. Although the Nazi saboteurs in Quirin were charged
with conspiracy, the Supreme Court affirmed their convictions based on the
independent charge that they had violated the law of war by crossing behind
enemy lines having removed their uniforms, with the purpose of committing
sabotage. See Quirin, 317 U.S. at 48. "The offense was complete when with
[hostile] purpose they entered — or, having so entered, they remained
upon—our territory in time of war without uniform or other appropriate means
of identification." Id. at 38. Like the case of the Lincoln conspirators,
Quirin involved a completed law-of-war offense, not an inchoate conspiracy
conviction like Bahlul's. "If anything, [**39]Quirin supports [the] argument that
conspiracy is not a violation of the law of war," because "[t]he Court was
careful in its decision to identify an overt, 'complete' act" and "took
seriously the saboteurs' argument that there can be no violation of law of
war — at least not one triable by military commission — without the actual
commission or attempt to [*45] commit a 'hostile and warlike act.'" Hamdan,
548 U.S. at 606-07 (plurality op.) (quoting Quirin, 317 U.S. at 37-38).
Brigadier General Mark Martins, the Chief Prosecutor of Military Commissions
in the Department of Defense since June 2011, likewise characterized Quirin
as an authority "supporting [the] rationale" that conspiracy may be tried
under the law of war in conjunction with a completed offense that appears on
the charge sheet, but not as an inchoate offense. Memorandum from Mark S.
Martins, Chief Prosecutor of Military Commissions, Dep't of Defense, to the
Convening Authority 4 (Jan. 6, 2013).

The government's reliance on Colepaugh v. Looney, 235 F.2d 429 (10th Cir.
1956), is misplaced. The Tenth Circuit followed Quirin in affirming the
denial of a habeas petition filed by another World War II saboteur.
Colepaugh had been convicted on three charges: (1) he "secretly passed
through, in civilian dress, contrary to the law of war, the military and
naval lines of the United States for the purpose of committing espionage,
sabotage and other hostile acts;" (2) he "appeared and remained in civil
dress, contrary to the law of war behind the military lines of the United
States for the purpose of committing espionage, sabotage and other hostile
acts;" and (3) "conspiracy to commit the above substantive offenses." Id. at
431. Like the Supreme Court in Quirin, the Tenth Circuit looked to the "body
of international common law known as the law of war," id. at 431-32, and
concluded that Colepaugh was not entitled to relief because he had committed
the same substantive law-of-war offense as the saboteurs in Quirin when he
entered this country and discarded his uniform for the purpose of committing
hostile acts involving the destruction of life or property, id. at 432
(quoting Quirin, 317 U.S. at 35). The court also followed the Supreme Court
in not confirming the validity of the separate conspiracy charge.
Consequently, this case, like Quirin, provides no support for the
government's theory that Bahlul could be tried by military commission for
inchoate conspiracy absent any charge that he committed a substantive
law-of-war offense.

3. In sum, "[f]ar from making the requisite substantial showing, the
Government has failed even to offer a 'merely colorable' case for inclusion
of conspiracy among those offenses cognizable by law-of-war military
commission," Hamdan, 548 U.S. at 611 (plurality op.) (citation omitted). As
the plurality in Hamdan explained:

The crime of 'conspiracy' has rarely if ever been tried as such in
this country by any law-of-war military commission not exercising
some other form of jurisdiction, and does not appear in either the
Geneva Conventions or the Hague Conventions — the major treaties on
the law of war. Winthrop explains that under the common law
governing military commissions, it [**40] is not enough to intend to
violate the law of war and commit overt acts in furtherance of that
intention unless the overt acts either are themselves offenses
against the law of war or constitute steps sufficiently substantial
to qualify as an attempt.

Insofar as the government proposes, contrary to Supreme Court precedent, a
U.S. common law of war basis for sustaining Bahlul's conspiracy conviction,
the government's proposal is also "unmoored from any enumerated power and
has no rational stopping place." Pet'r's Br. 32. Such a theory suggests that
modern military commissions could try defendants for any offense that
approximates a charge previously [*46] brought before any type of military
tribunal, including Civil War era military commissions convened to try
ordinary civilian crimes. See id.

The government's interpretation of Congress's intent in enacting the 2006
Act, additionally, leaves no room for consideration of the reasons the
international community has rejected inchoate crimes as law-of-war offenses:
for example, their dragnet effect could sweep in and condemn as war
criminals the line soldier who merely pledged allegiance to the enemy as
well as the errant but innocent delivery boy or shepherd who was on the
wrong street at the wrong time. See Taylor at 553; Br. of Amicus Curiae
Int'l Law Scholars 7, 15-18. The Supreme Court has long understood the role
of military commissions to arise from the military necessity in the midst of
war "to seize and subject to disciplinary measures those enemies who in
their attempt to thwart or impede our military effort have violated the law
of war," Quirin, 317 U.S. at 28-29; Hamdan, 548 U.S. at 596 (plurality op.),
not to try and convict (as distinct from holding as prisoners of war) anyone
who is a member of the opposing forces. The law of war governing the use of
military commissions is a product of the costly lessons learned in the last
century from two World Wars, including the principle that, as a matter of
international law, law-of-war offenses are about personal responsibility for
war crimes, not collective guilt. See TRIAL OF MAJOR WAR CRIMINALS AT
NUREMBERG at 500. It seems unlikely the Congress that enacted the 2006 Act
intended to cast aside such costly learning without expressly indicating
that it intended to do so; by using the phrase "offenses that have
traditionally been triable," 10 U.S.C. § 950p(a) (emphasis added), in
stating its purpose, Congress signaled it was adhering to the established
understanding of the role of military commissions, not breaking new ground.

And, even assuming arguendo that practices of U.S. military commissions
could provide an independent basis upon which to support the jurisdiction of
a law-of-war commission to try an offense not recognized in international
law, nor codified in statute at the time, the government's failure to
demonstrate that such a "tradition[]" existed at the time of the charged
conduct requires vacatur of Bahlul's inchoate conspiracy conviction.

Were the implications for the separation of powers raised by trial by
military [**41] commission not "of the highest order," Hamdan, 548 U.S. at 638
(Kennedy, J., concurring in part), the government's effort to establish its
inchoate conspiracy theory on the basis of so meager and deficient an
historical showing that it was among the "offenses that have traditionally
been triable by military commissions," 10 U.S.C. 950p(a) (2006) (emphasis
added), might be less problematic. After all, the war on terror is unlike
recent wars waged among sovereign nations whose troops wore identifiable
uniforms, and two Presidents have employed a modern "enemy combatant"
military justice regime. See, e.g., Boumediene v. Bush, 553 U.S. 723, 733
(2008); Hamdan, 548 U.S. at 570 & n.1. But in codifying "offenses that have
traditionally been triable by military commissions" in the 2006 Act,
Congress did not encourage or permit any blurring of the jurisdictional
lines between military commissions and Article III courts. The Article III
courts were open for prosecuting September 11 perpetrators and other members
of al Qaeda for inchoate conspiracy or other federal crimes. Only years
later did Congress bar the President from using appropriated funds to bring
Guantanamo [*47] detainees into the United States for any purpose. The President
has opposed such restrictions on the
ground that they strip the Executive Branch of "the authority to determine
when and where to prosecute Guantanamo detainees, based on the facts and
circumstances of each case and our national security interests" — when the
Administration wishes to employ federal prosecutions [in Article III courts]
as "a legitimate, effective, and powerful tool in our efforts to protect the
Nation." See Statement by the President on H.R. 3304 (Dec. 26, 2013). So
far, Congress has not been persuaded to remove the restrictions. In the
meantime, the court has a duty "in time of war as well as in time of peace,
to preserve unimpaired the constitutional safeguards of civil liberty."
Quirin, 317 U.S. at 19. Hewing to the jurisdictional limits for law-of-war
military commissions, as Supreme Court precedent instructs, preserves the
separation of powers under which law-of-war military commissions are
confined to their historical role as necessities, not conveniences, of war.
Congress's unequivocal statement of its purpose and effect in section 950p
of the 2006 Act is consistent only with the understanding that it intended
to maintain the traditional jurisdictional lines.

II.

There is still another reason why Bahlul's conviction for inchoate
conspiracy (and the other two convictions) must be reversed if the 2006 Act
is applied retroactively. See Op. at 15. Even assuming, contrary to its
express statement of the intended "effect" of the 2006 Act,
10 U.S.C. § 950p(b), that Congress intended the 2006 Act to apply
retroactively to create new offenses triable by military commissions,
Bahlul's convictions must be vacated under the Ex Post Facto Clause of the
Constitution. U.S. CONST. art. I, § 9, cl. 3.

A.

Bahlul's Ex Post Facto Clause challenge to his convictions is properly
reviewed de novo for any one of three reasons.
In applying a plain error standard of review, the majority imposes a
magic-words requirement nowhere [**42] to be found in the precedent of the Supreme
Court or in the Uniform Code of Military Justice as interpreted by the Court
of Appeals for the Armed Forces. See, e.g., Olano v. United States,
507 U.S. 725 (1993).

Bahlul unambiguously objected to his trial on the grounds he was being
charged with offenses that did not exist at the time of his alleged conduct.
Although he did not refer specifically to the Ex Post Facto Clause, his
pretrial colloquy with the presiding military judge invoked its principles
and alerted the military commission to the substance of his objection, which
is all that is required to preserve an objection. See, e.g., United Statesv. Breedlove, 204 F.3d 267, 270 (D.C. Cir. 2000). The Ex Post Facto Clause
is designed both "to assure that legislative Acts give fair warning of their
effect" and to "restrain[] arbitrary and potentially vindictive
legislation." Weaver v. Graham, 450 U.S. 24, 28-29 (1981). Bahlul objected
to the judge that after the events of September 11, 2001, this country had
"put on the side, the meaningless American laws, the United Nations, ... the
world codes, the international law and what branches out of it and the
international war laws and the Geneva Conventions and the internal American
law — military law, and the civil law — American civil law" and instead had
"legislated new laws and this military commission." Trial Tr. 23. Bahlul
repeated that the United States had "established [*48] a new law in the land, for
me and for any person that stands in front of you or before you in the war
in the entire world; but specifically, the Islamic world, and specifically
also, the Mujahideen Regime." Id. at 24. He accused the United States of
"getting confused between laws and going in an empty circle ... [b]ecause
today, you set a law that would impact you tomorrow, and then you will
change it, or adjust it, or add to it." Id. at 25.

With these arguments, Bahlul expressly challenged the "new
laws and this military commission" that was to try him as divorced from both
international and American law principles and as constructed after-the-fact
for the purpose of trying members of al Qaeda. Bahlul's objections to "new
laws" being applied to him and to "chang[ing]," "adjust[ing]," and "add[ing]
to" existing laws are the considerations animating the ex post facto
prohibition. The presiding military judge understood Bahlul's arguments and
his decision to "boycott" the military commission proceedings to be a motion
to dismiss for lack of jurisdiction, because the law that created the
proceedings was unlawful or the charges did not state an offense. Id. at
98-99.

Even if Bahlul had forfeited his ex post facto challenge, de novo review
of a forfeited issue is permitted where the lower court has "nevertheless
addressed the merits of the issue." Blackmon-Malloy v. Capitol Police Bd.,
575 F.3d 699, 707 (D.C. Cir. 2009) (citing United States v. Williams,
504 U.S. 36, 41 (1992)); see United States v. Hernandez-Rodriguez,
352 F.3d 1325, 1328 (10th Cir. 2003); cf. Milhouse v. Levi, 548 F.2d 357,
363 (D.C. Cir. 1976); United States v. Gorski, 47 M.J. 370, 375 (C.A.A.F.
1997). This principle applies in both criminal and civil cases. SeeWilliams, 504 U.S. at 41. The Court of Military Commission Review considered
Bahlul's constitutional Ex Post Facto Clause objection [**43] on the merits,
820 F.Supp.2d 1141, 1218 (C.M.C.R. 2011), and this court may as a matter of
discretion consider Bahlul's challenge under a de novo standard of review.
Given that Bahlul's objections go to the fundamental issue of the military
commission's jurisdiction, this court should apply de novo review.

Furthermore, under the Rules of Military Commissions, Bahlul's challenge
to the military tribunal's jurisdiction and the charges against him cannot
be waived or forfeited and is reviewed de novo. Rule 905(e) provides, in
relevant part, that failure to raise defenses or objections or to make
motions or
requests "except lack of jurisdiction or failure of a charge to allege an
offense" at the appropriate time "shall constitute waiver." See THE MANUAL
FOR MILITARY COMMISSIONS, at II-83-84 (2007). The rule thus defines "waiver"
to include forfeiture. Similarly, Rule 907(b)(1), "Nonwaivable grounds,"
states that "[a] charge or specification shall be dismissed at any stage of
the proceedings if: (A) The military commission lacks jurisdiction to try
the accused for the offense; or (B) The specification fails to state an
offense." Id. at II-87. As the presiding military judge concluded, Bahlul's
retroactivity objection is a claim that the charges against him fail to
state an offense. Cf. MOORE'S FEDERAL PRACTICE § 612.04 (Lexis 2014) ("The
defense of failure to charge an offense may be based on ... the
unconstitutionality of the statute relied upon."); see also United States v.Haddock, 956 F.2d 1534, 1542 (10th Cir. 1992), abrogated on other grounds byUnited States v. Wells, 519 U.S. 482 (1997); United States v. Gilbert,
813 F.2d 1523, 1528-29 (9th Cir. 1987); United States v. Seuss,
474 F.2d 385, 387 n.2 (1st Cir. 1973).
[*49]

B.

The government concedes that the Ex Post Facto Clause applies in military
commission prosecutions under the 2006 Act of detainees at Guantanamo Bay.
See Resp't's Br. 64. This conclusion follows from Boumediene,
553 U.S. at 766-71. Like the Suspension Clause at issue there, the Ex PostFacto Clause is "one of the few safeguards of liberty specified in a
Constitution that, at the outset, had no Bill of Rights," id. at 739, and
serves both to protect individuals and to preserve the Constitution's
separation-of-powers structure. See id. at 739-46; Landgraf,
511 U.S. at 267-68; Weaver, 450 U.S. at 29 n.10. "Because the Constitution's
separation-of-powers structure ... protects persons as well as citizens,
foreign nationals who have the privilege of litigating in our courts can
seek to enforce separation-of-powers principles." Boumediene,
553 U.S. at 743.
The Court's analysis of the extraterritorial reach of the Suspension Clause
applies to the Ex Post Facto Clause because the detainees' status and
location at Guantanamo Bay are the same, and the government has pointed to
no distinguishing "practical obstacles" to its application. See id. at 766.
The 2006 Act, in providing that it "does not establish new crimes that did
not exist before its enactment," 10 U.S.C. § 950p(a), fairly demonstrates
Congress's implied recognition of the reach of the fundamental protections
embodied in the Ex Post Facto Clause.

Ex post facto laws are "contrary to the great first principles of the
social compact," Calder, 3 Dall. at 388 (opinion of Chase, J.), and are
"condemned by the universal [**44] sentence of civilized man" as "oppressive,
unjust, and tyrannical," Ogden v. Saunders, 25 U.S. 213, 266 (1827). The ExPost Facto Clause both "ensures that individuals have 'fair warning' about
the effect of criminal statutes," Landgraf, 511 U.S. at 267-68 (citation
omitted), and serves as a meaningful structural constraint imposed by
Article I that goes "to the very root of the power of Congress to act all,"
Downes v. Bidwell, 182 U.S. 244, 277 (1901) (opinion of Brown, J.); see alsoWeaver, 450 U.S. at 29-30. It "safeguards 'a fundamental fairness interest
... in having the government abide by the rules of law it establishes to
govern the circumstances under which it can deprive a person of his or her
liberty or life.'" Peugh v. United States, 133 S.Ct. 2072, 2085 (2012)
(quoting Carmell v. Texas, 529 U.S. 513, 533 (2000)). And it "upholds the
separation of powers by confining the legislature to penal decisions with
prospective effect and the judiciary and executive to applications of
existing penal law." Weaver, 450 U.S. at 29 n.10.

Tellingly, when ratified and now, the Ex Post Facto Clause addresses the
risk that, in response to political pressures, the legislature "may be
tempted to use retroactive legislation as a means of retribution against
unpopular groups or individuals."
Landgraf, 511 U.S. at 266; see Weaver, 450 U.S. at 29. By safeguarding the
boundaries between the branches of government, the Clause promises that
accusations that this country has, in Bahlul's words, "put [our laws] on the
side" and "established a new law" for our enemies, Trial Tr. 23-24, will
lack merit. Yet in an odd turn of phase for addressing "one of the most
basic presumptions of our law," Johnson, 529 U.S. at 701, the government
urges that the Clause "should apply flexibly" here "because of the common
law nature of military proceedings" and "because Bahlul's [*50] conduct was
criminal when done," albeit under statutes providing for prosecution in an
Article III court. Resp't's Br. 62-63, 67. The government's "flexible"
approach to the Ex Post Facto Clause, relying on the position that Bahlul's
conduct may have been proscribed by laws other than those under which he was
charged and convicted, "is a standardless exercise in crime by analogy,"
Pet'r's Reply Br. 21, that the Supreme Court has condemned, see, e.g.,Papachristou v. Jacksonville, 405 U.S. 156, 168-69 (1972), and the law of
war forbids, see, e.g., Rome Statute of the International Criminal Court
art. 22, July 17, 1998, 2187 U.N.T.S. 90; 6 LAW REPORTS OF TRIALS OF WAR
CRIMINALS at 95 (practices such as "application of principles of law
condemned by the practice of civilised nations such as punishment by analogy
... are all properly classed as war crimes").

C.

Article I military commissions are an extraordinary tool designed to
permit the military to infringe on the Article III power of the judiciary
only to accomplish specific and discrete objectives. Through the use of
military commissions, the government can provide a substitute for civilian
courts in occupied territories and in places where martial law has been
declared. See Hamdan, 548 U.S. at 595-96 (plurality op.); see id. at 683
(Thomas, J., dissenting). As relevant here, military
commissions may be convened as an "incident to the conduct of war," to
prosecute law-of-war offenses. Quirin, 317 U.S. at 28-29; see Hamdan,
548 U.S. at 596-97 (plurality op.); 10 U.S.C. § 948b(a) (2006). The
retroactive expansion [**45] of the jurisdiction of Article I law-of-war military
commissions to include offenses that "have [not] traditionally been triable
by military commissions," however, contravenes the structural limitations
embodied in the Ex Post Facto Clause.

This appears to be a test case brought by the government to establish the
jurisdiction of law-of-war military commissions over inchoate conspiracy
where the government has evidence the defendant entered into an agreement to
engage in terrorist acts against the United States, but no evidence the
defendant committed an overt act that was a law-of-war offense in
furtherance of the agreement. This approach may assist the Executive Branch
in surmounting obstacles to prosecutions in Article III courts caused by
Congress's recent restrictions on the use of appropriated funds to bring
Guantanamo detainees into the United States. See, e.g., Statement by the
President on H.R. 3304 (Dec. 26, 2013). But it puts at risk the separation
of powers and the ex post facto principle by ignoring Congress's plain
statement of purpose and effect in the 2006 Act, the "traditional[]"
jurisdiction of military commissions, and the international community's
rejection of inchoate offenses as lawof-war offenses.

Accordingly, the inchoate conspiracy charge of which Bahlul was convicted
under the 2006 Act does not support the jurisdiction of the military
commission and this conviction must be vacated as well as the two
convictions vacated by the court. All three convictions must be vacated as
violations of the Ex Post Facto Clause. It remains for the Administration to
decide whether to bring other charges against Bahlul before a military
commission or whether to charge him in an Article III court.
To the extent that Congress has created an obstacle to bringing Bahlul to
the United States, Congress can remove it. The question whether Congress has
impermissibly intruded upon the President's Article II powers is not before
the court. In [*51] the meantime, "[t]he laws and Constitution are designed to
survive, and remain in force, in extraordinary times. Liberty and security
can be reconciled; and in our system they are reconciled within the
framework of the law." Boumediene, 553 U.S. at 798. I concur in the judgment
vacating Bahlul's convictions for material support and solicitation, and I
respectfully dissent with regard to affirmance of Bahlul's conviction for
inchoate conspiracy.

BROWN, Circuit Judge, concurring in the judgment in part and dissenting in
part:

Over five years ago, Ali Hamza Ahmad Suliman al Bahlul was convicted of
conspiracy, solicitation, and providing material support for terrorism.
Since that time, the government has been defending the conviction, first
before the Court of Military Commission Review and now before this court. In
this appeal, the government seeks clarification of the prosecutorial tools
it can employ in the war on terror. While I concur in the court's judgment
affirming Bahlul's conspiracy conviction and vacating the solicitation and
material support convictions, I cannot [**46] agree with the way the court reaches
that result. By reviewing Bahlul's claims under a plain error standard, the
court minimizes the value its opinion might provide to the government in
future prosecutions. And by remanding residual issues to a panel, the court
delays resolution of Bahlul's case.

I would definitively answer the important questions raised by Bahlul's
appeal, reviewing his ex post facto arguments under a de novo standard. I
would also affirm Congress's power under the Define and Punish Clause to
make certain offenses, including conspiracy, triable by military commission.
This legal saga has endured long enough, and we should take this opportunity
to resolve important legal questions that have arisen from the war on
terror.

I

The opinion of the court provides insightful legal and historical
background and, in certain areas, well-reasoned analysis. The separate
opinions of Judges Henderson and Kavanaugh afford additional insight. There
is much in those opinions with which I wholeheartedly agree. But although I
concur in the court's judgment, I would reach its conclusion through a
slightly different path. In this section, I draw on the
compelling analysis of my colleagues to explain briefly how I would dispose
of Bahlul's challenges. In the following sections, which contain the
analytical bulk of my concurrence, I address three issues that I feel are
not adequately covered by the other opinions: the applicability of ex post
facto principles to Bahlul's convictions, Bahlul's challenge to Congress's
power under the Define and Punish Clause, and the court's decision to remand
remaining issues to a panel of this court.

I begin by noting the areas where I agree with my colleagues. First, for
the reasons expressed by Judge Kavanaugh, I would review Bahlul's Ex Post
Facto Clause and retroactivity arguments under a de novo standard. See
Opinion of Judge Kavanaugh (Kavanaugh Op.) 30-34; see also Opinion of Judge
Rogers Part II.A. Bahlul asked the Military Judge presiding over his trial a
"legal question" that, although not a model of clarity, was sufficient to
preserve those arguments: "Does the law here start from before, during, or
after?" Supp. App. 37. Furthermore, Rules 905 and 907 of the Rules of
Military Commissions make jurisdictional challenges — including Bahlul's —
not subject to forfeiture.
[*52]

Second, I agree with the court that the Military Commissions Act (MCA) of
2006 unambiguously authorizes retroactive prosecution for all the crimes
enumerated in that statute. See Op. Part III. Both the text of the Act —
including in particular 10 U.S.C. § 948d(a) (2006) (granting military
commissions jurisdiction over offenses "committed ... before, on, or after
September 11, 2001") — and the context of the judicial – legislative
dialogue in which the Act was passed require this conclusion.

Third, like the court, I would accept, for the purposes of this case only,
the government's concession that the Ex Post Facto Clause provides its
protection to aliens detained at Guantanamo. See Op. 26-28. However, I doubt
the correctness of the government's concession. [**47] If our review of the
question were de novo, I would, like Judge Henderson, apply the longstanding
precedents of the Supreme Court and this court and conclude that the Ex Post
Facto Clause does not apply to Bahlul or other aliens at Guantanamo. See
Opinion of Judge Henderson.

Fourth, I would reject Bahlul's Ex Post Facto Clause challenge as it
concerns his conspiracy conviction. As Judge Kavanaugh explains, prior to
2006, the "law of war" provision of 10 U.S.C. § 821 (Article 21 of the
Uniform Code of Military Justice) preserved the jurisdiction of military
commissions to try offenses that (1) were codified in federal statutes and
explicitly made triable by military commission, (2) were recognized by the
international law of war, or (3) were, according to domestic tradition and
practice, triable by military commission. See Kavanaugh Op. 7-11; cf. Op.
36-40 (holding such a conclusion is not plainly erroneous). Furthermore, as
the Lincoln conspirators' cases, Quirin, Colepaugh, and the Korean War
decisions demonstrate, domestic practice traditionally treated conspiracy as
an offense triable by military commission. See Kavanaugh Op. 11-16; cf. Op.
40-44 (reaching similar conclusion under a plain error standard). Because
conspiracy was an offense triable by military commission before the 2006
MCA, Bahlul's prosecution for that offense did not violate the Ex Post Facto
Clause.[fn1]

Fifth, I fully agree with the court's discussion of material support and
solicitation and its conclusion that those offenses were not historically
triable by military commission. See Op. Part IV.B-C. Thus, I join the
court's decision to vacate Bahlul's convictions for those offenses.

II

As noted above, if not for the government's concession, I would hold that,
as an alien detained outside the sovereign territory of the United States,
Bahlul is not entitled to the protections otherwise afforded by the Ex Post
Facto Clause. However, despite my doubts about the extraterritorial
applicability of the Clause, I do not doubt that its underlying principles
apply to detainees at Guantanamo. The [*53] legal principle nullum crimen sinelege, found in the common law and international law, constrains the power of
the United States to prosecute wherever it may do so. But, even if there
were not a long history of conspiracy charges being tried by military
commission, invocation of the ex post facto principle alone could not help
Bahlul or similarly situated detainees. As the International Military
Tribunal convened at
Nuremberg in the aftermath of World War II thoughtfully observed, "the maxim
nullum crimen sine lege is not a limitation of sovereignty, but is in
general a principle of justice." Judgment of October 1, 1946, 1
INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAJOR WAR CRIMINALS (IMT) 171,
219 (1947).

During the proceedings of the International Military Tribunal, the
defendants, who were charged with conspiring to wage aggressive war,
complained that ex post facto punishment was abhorrent to the law of all
civilized nations and that no sovereign power had made aggressive war a
crime, [**48] no statute defined aggressive war, no penalty had been fixed for its
commission, and no court had been created to try and punish offenders at the
time the acts were committed. Nevertheless, the Tribunal recognized that its
expression of the international law was "itself a contribution to
international law" and, in setting up the Tribunal, several nations had done
together what any nation had a right to do singly. Id. at 218. The Tribunal
stated that "[t]o assert that it is unjust to punish those who in defiance
of treaties and assurances have attacked neighboring states without warning
is obviously untrue, for in such circumstances the attacker must know that
he is doing wrong, and so far from it being unjust to punish him, it would
be unjust if his wrong were allowed to go unpunished." Id. at 219.

In the case of the terrorist attacks of September 11, involving the murder
of thousands of civilians, the attackers knew the civilized world would
condemn their actions. Bahlul was fully aware of how the world would view
his complicity in a moral evil, and "so far from it being unjust to punish
him, it would be unjust if his wrong were allowed to go unpunished." See id.

III

Bahlul argues Congress does not have the power under the Define and Punish
Clause to make triable by military commission those offenses not proscribed
by the international law of war. The court remands this issue to the panel.
But the issue was fully briefed and argued before the en banc court and, for
the reasons explained below, see infra Part IV, I think we should take the
opportunity to resolve Bahlul's challenge now.

Judge Kavanaugh would resolve this challenge by holding that Congress's
authority to establish military commissions derives not only from the Define
and Punish Clause, but from Congress's war powers more generally, including
those originating in the Declare War and Necessary and Proper Clauses of
Article I, Section 8. See Kavanaugh Op. Part II. Judge Kavanaugh notes that
the war powers clauses do not refer to international law and are not defined
or constrained by that law. While I agree with Judge Kavanaugh's broad
characterization of Congress's war powers, I find his resolution of Bahlul's
claim incomplete. By looking to Congress's authority under the war powers
clauses, Judge Kavanaugh leaves unresolved the argument that Congress's
power under the Define and Punish Clause is strictly constrained by
international law. I would resolve Bahlul's challenge to Congress's Define
and Punish Clause powers on Define and Punish Clause grounds [*54] alone, holding
that the Clause gives Congress far greater powers than Bahlul
acknowledges.[fn2]

Any discussion of the Define and Punish Clause must take proper account of
two separate but related points. First, in drafting the Clause, the Framers
were distinctly aware of the undefined and adaptable nature of international
law. They also recognized the concomitant flexibility inherent in that law.
And they understood that the United States could, and indeed should, make
use of that flexibility to advance its [**49] own national security interests. That
is, the Framers intended the United States — like other nations — to act in
its own self-interest, albeit within the flexible constraints of
international law. Second, the Framers deliberately placed the
responsibility and prerogative to interpret and define international law
with Congress — a political branch — rather than with the judiciary. This
second point is related to the first and to some extent demonstrates its
truth: If the Framers had intended the country to be strictly constrained by
narrowly-interpreted international law, it would have made more sense to
place the power to interpret that law with the judiciary — the legal branch
expert in such tasks. But, instead, the Framers placed the power with
Congress, intending that Congress would interpret and define international
law in a more flexible way that serves the country's self-interest, but
still remains compatible with international norms. The Framers recognized
the discretion that must necessarily be exercised in defining international
law, and entrusted that discretion to Congress. The judiciary was given only
very limited power to review Congress's choices in defining and punishing
violations of international law, and must exhibit tremendous deference to
the legislature's choices in this area.

With respect to the two principles described above, Congress's decision to
make conspiracy an offense triable by military commission provides an
excellent example of the
flexibility inherent in international law and ably demonstrates
congressional prerogatives.

A

1

The history behind the Define and Punish Clause supports an expansive
reading of Congress's power under the Clause. Both the drafters of the
Constitution and their eighteenth-century audience would have had more than
a passing familiarity with Blackstone and Locke — and, perhaps, Vattel,
Grotius, and other theorists — whose writings not only suggest the law of
nations was the special domain of the executive and legislative branches,
not the judiciary, but also tend to emphasize the protean quality of
international law. See THE FEDERALIST NO. 42, at 260 (James Madison)
(Clinton Rossiter ed., 1961) (referring to the Define and Punish Clause as
one of the "class of powers, lodged in the general government ... which
regulate the intercourse with foreign nations"); BERNARD BAILYN, THE
IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 27-31 (1967); FORREST
McDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION
7, 60, 80 (1985).

The Framers were committed to a national government agile enough to avoid
foreign entanglements and strong enough to deter aggression. In part, it was
the country's weakness in the face of decades [*55] of depredations by pirates in
the pay of the despots of the Barbary States that added urgency to the
constitutional convention. In 1785, when emissaries Thomas Jefferson and
John Adams sought a diplomatic solution to America's piracy problems, Abdal
Rahman, the representative of Tripoli's pasha, coolly
reiterated [**50] his nearly one-million-dollar ransom demand, and replied to their
peace overtures in terms that would be familiar to contemporary Americans.
He told the emissaries: "all Nations who should not have acknowledged [the
Muslims'] authority were sinners, that it was [Islam's] right and duty to
make war upon whoever they could find and to make Slaves of all they could
take as Prisoners, and that every Mussulman who should be slain in battle
was sure to go to Paradise." MICHAEL B. OREN, POWER, FAITH, AND FANTASY:
AMERICA IN THE MIDDLE EAST, 1776 TO THE PRESENT 26-27 (2007). And the
fledgling U.S. Republic continued to be victimized, paying as much as a
tenth of the national treasury to ransom its citizens and its ships until
well into the nineteenth century when President Jefferson finally had a navy
equal to the task of freeing some shipping lanes. It is inconceivable that
the drafters, cognizant of this unhappy history and understandably wary of
the agendas and motives of European powers, would have intended a reference
to the law of nations to limit America's ability to defend its sovereignty
and its citizens to only such actions as some international consortium
sanctioned. Cf. NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, REPORTED
BY JAMES MADISON 637, (W. W. Norton & Co. 1987) (debate on the Define and
Punish Clause); THE FEDERALIST NOS. 16, 66, 68 (Alexander Hamilton).

More importantly, the Framers clearly understood that parity among
sovereign states is an aspect of power. Customary international law is often
just another name for enlightened self-interest. The philosophical and
cultural environment in which the Constitution developed was permeated by
the premise of natural law at the core of the Constitution. The drafters saw
nothing odd in the idea that nation-states could commit wrongs or that
wronged states could punish bad behavior, provided they were strong enough
to do so.
America is not just the passive subject of the law of nations; it is a
participant of and contributor to it. No one doubts the right of all nations
"to resort to forcible means for the purpose of repressing any one
particular nation who openly violates the laws of the society which Nature
has established between them, or who directly attacks the welfare and safety
of that society." EMMERICH DE VATTEL, THE LAW OF NATIONS, Preliminaries §
22, at 61 (photo. reprint 2005) (1854). Punishment contemplated a spectrum
of coercive means up to and including war. Thus, Congress's power to punish
offenses against the law of nations comprehended a power to invoke a range
of coercive means to preserve and maintain the law of nations. These
sentiments are also part of the organic law of nations. See J. Andrew Kent,
Congress's Under-Appreciated Power to Define and Punish Offenses Against theLaw of Nations, 85 TEX. L. REV. 843, 927 (2007) ("The collective enforcement
of the law of nations envisioned by Vattel, Grotius, and others included the
power to punish through warfare pirates, terrorists, and other sub-state
violent groups."); see also VATTEL, THE LAW OF NATIONS, supra, bk. III § 34,
at 407 ("[P]rofessed [**51] assassins and incendiaries are guilty, not only towards
the particular victims of their nefarious deeds, but also towards the state,
which therefore proclaims them public enemies. All nations have a right to
join in a confederacy for the purpose of punishing and even exterminating
those savage nations.").
[*56]

Moreover, the law of nations includes not only what is mandated, such as
compliance with self-executing treaty obligations, but also what is
permitted. See, e.g., HUGO GROTIUS, THE LAW OF WAR AND PEACE, bk. 2, ch. 20,
§ 40, 226-27 (Walter J. Black 1949) (1625) (permitting nations to wage war
not only for wrongs committed against themselves, but also for wrongs
against nature). As one drafter explained: "The law of nature, when applied
to states or political
societies, receives a new name, that of the law of nations." JAMES WILSON,
OF THE LAW OF NATIONS, in 1 THE WORKS OF JAMES WILSON 148 (Robert Green
McCloskey, ed., Harvard Univ. Press 1967) (1804).

Commentaries and treatises attempted to summarize how natural rights
applied to relations between nations. In fact, the full title of Vattel's
work is The Law of Nations Or, Principles of the Law of Nature, Applied tothe Conduct and Affairs of Nations and Sovereigns. Thus, such treatises
acknowledged the undisputed right of each nation to preserve its national
existence, to punish the violation of its laws, and to defend its polity and
protect its property, and condemned unwarranted violence, conquest, and
lawlessness. Vattel distinguishes the Positive law of nations (based on
treaties, convention, and custom) from the Natural or Necessary law of
nations. "As to the rights introduced by Treaties or by Custom, there is no
room to apprehend that any one will confound them with the Natural law of
nations." VATTEL, THE LAW OF NATIONS, supra, Preliminaries § 27, at 63. To
the extent these laws originated as precepts of reason derived from the law
of nature, it makes sense that the law can change in response to the
exigencies of new species of violence.

The few early cases interpreting the Define and Punish Clause acknowledged
the flexibility inherent in international norms and deference to the
exclusive congressional prerogatives the clause prescribes. In United Statesv. Smith, 18 U.S. (5 Wheat.) 153 (1820), Justice Story noted offenses
against the law of nations "cannot, with any accuracy, be said to be
completely ascertained and defined in any public code recognised by the
common consent of nations." Id. at 159. He acknowledged that Congress could
provide its own enumeration of offenses or leave the definition, "without
inconvenience to the law of nations." Id. at 158.

In United States v. Arjona, 120 U.S. 479, 487-88 (1887), Chief Justice
Waite held that Congress may punish an individual who counterfeits another
nation's money because the law of nations generally requires prevention of a
wrong within one nation's dominion against a nation with whom it is at
peace. Thus, Congress could define and punish counterfeiting as a violation
of the law of nations even though counterfeiting was not a widely recognized
offense like piracy. And there are other early indications [**52] from the Supreme
Court that no mandate in the Constitution requires Congress to follow
strictly the law of nations. See, e.g., Ware v. Hylton,
3 U.S. (3 Dall.) 199, 224 (1796) (Chase, J.) ("Suppose a general right to
confiscate British property, is admitted to be in Congress, and Congress had
confiscated all British property within the United States, including private
debts: would it be permitted to contend in any court of the United States,
that Congress had no power to confiscate such debts, by the modern law of
nations? If the right is conceded to be in Congress, it necessarily follows,
that she is the judge of the exercise of the right, as to the extent, mode,
and manner."); id. at 266 (Iredell, J.) (noting "[t]he power ... of the
Legislature of the Union [is limited] by the Constitution of the Union" but
acknowledging that when the legislature acts [*57] within a discretion expressly
confided by the Constitution its enactments are "in all cases obligatory").

As Justice Story observed in Smith, the international law's resistance to
facile formulas led the Framers to entrust Congress with the "power to
define" the laws of nations. 18 U.S. at 159. The range and fluidity of
international law, the distinctive needs of each nation-state, and dangers
of faction to a system that relies on myriad sources establishing a
consensus of nation-state opinion and practice increased the
necessity for carving out a zone of deference for Congress's authority.

The Framers labored to separate law from politics because they knew that
without that boundary, everything would be politics. They (wisely) perceived
that law is (mostly) clear and categorical while politics — statecraft,
diplomacy, warfare — is murky, a realm Justice Jackson evocatively dubbed
the "zone of twilight." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
637 (1952) (Jackson, J., concurring). The structure of the Constitution
echoes this rhetorical divide. On the political side, the Define and Punish
Clause is included in Article I, Section 8, grouped with the other
enumerated war powers such as declaring war, raising armies, maintaining a
navy, and issuing letters of marque and reprisal. On the legal side, the Ex
Post Facto Clause in Section 9 is part of a list of prohibitions limiting
and defining the power of the national government over sovereign states and
the polity newly subject to national power. The single exception to this
categorization may be the prohibition on suspension of the Writ of Habeas
Corpus, and that limitation can be overridden when it threatens the defense
powers authorized by Section 8. Cf. Robert J. Pushaw, Jr., The InherentPowers of Federal Courts and the Structural Constitution, 86 IOWA L. REV.
735, 744-47 (2001); Martin H. Redish, Federal Common Law, PoliticalLegitimacy, and the Interpretive Process: An "Institutionalist" Perspective,
83 N.W. U. L. REV. 761, 765 (1989).

Thus, both the history and the placement of the clause demonstrate the
power to define and punish was intended to give Congress flexibility in
protecting national security, not to constrain the country's ability to act
by reference to international norms. They also suggest the power is a unique
[**53]
legislative power separate from traditional federal court jurisdiction.

2

More modern authorities demonstrate that international law has remained as
flexible a concept today as it was in 1789. Like all common law, the law of
war is part of an evolving process. As the International Military Tribunal
at Nuremberg explained:

[I]nternational law is not the product of an international
legislature, and ... international agreements ... have to deal with
general principles of law.... The law of war is to be found not only
in treaties, but in the customs and practices of states which
gradually obtained universal recognition, and from the general
principles of justice applied by jurists and practised by military
courts. This law is not static, but a continual adaptation follows
the needs of a changing world.

1 IMT 221.

The international law of war is an evolving effort to protect civilians
from the horrors of total war. Weaponry and modes of warfare change; human
nature does not. Customary understandings about the international law of war
are revised to account for the impact of bigger armies, more lethal weapons,
and the speed and scope of belligerents' response. Thus, the [*58] Lieber Code
drafted during our Civil War gave way to the 1868 St. Petersburg
Declaration, which stated that "the progress of civilization should have the
effect of alleviating as much as possible the calamities of war."
Declaration Renouncing the Use, in Time of War, of Certain Explosive
Projectiles (St. Petersburg Nov. 29/Dec. 11, 1868).
The Hague Convention of 1899 included the so-called Martens Clause, still
applicable today, which declared that except where otherwise provided within
the specific regulations of the Convention, "populations and belligerents
remain under the protection and empire of the principles of international
law, as they result from the usages established between civilized nations,
from the laws of humanity, and the requirements of the public conscience."
Convention with Respect to the Laws and Customs of War on Land (Hague II),
pmbl., July 29, 1899. Thus, the international community continues to
recognize the protean nature of the law of war, and recognizes that the law
may and should develop to address the demands of contemporary warfare.

What is perhaps an ironic example of the fluid development of the
international law of war can be seen in Hamdan v. Rumsfeld (Hamdan I),
548 U.S. 557 (2006). The 1907 Hague Convention and the Geneva Conventions
which followed it in 1929 and 1949 sought to provide a bright line of
demarcation between combatants who could be harmed and noncombatants who
could not be targeted. Reciprocity was the key to this protective regime.
Combatants had to act under a fixed command structure, wear insignia that
clearly identified them as combatants, and refrain from targeting or killing
civilians. In 1977, the International Committee of the Red Cross, egged on
by non-aligned nations and those within the sway of the former Soviet Union,
introduced additional protocols that broke away from the reciprocity norms,
allowing parties [**54] engaged in nonconventional warfare to refuse to wear
distinguishing insignia or carry arms openly until immediately before an
attack, and allowing non-state actors "fighting against colonial domination
and alien occupation and against racist regimes" to assert lawful authority
for their efforts. Protocol Additional to the Geneva Conventions of 12
August 1949, art. 1, 44, June 8, 1977. Leading states,
including the United States, declined to ratify these protocols, fearing
they would protect terrorists at the expense of civilians and allow
insurgents to claim status as prisoners of war.

However, in Hamdan I, Justice Stevens broke apart these carefully crafted
understandings. He concluded that Salim Hamdan was entitled to the
protections of Article 3 of the Geneva Conventions (Common Article 3)
without determining either the nature of the conflict or the status of the
combatant, and without deciding whether extending the Conventions'
protections to terrorists, anarchists, or brigands violated the expectation
of the parties. Even Hamdan I's fans lament its "incomplete and at times
cursory analysis of critical issues involving the Geneva Conventions' scope
and the substantive protections the Conventions provide." Michael W. Lewis,
International Myopia: Hamdan's Shortcut to "Victory", 42 U. RICH. L. REV.
687, 689 (2008). They note "a certain clumsiness of application and a dearth
of analytical rigor." Fionnuala Ní Aoláin, Hamdan and Common Article 3: Didthe Supreme Court Get It Right?, 91 MINN. L. REV. 1523, 1524 (2007).

As Justice Stevens reconstructed Common Article 3, plucking bits and
pieces out of other articles to suit his narrative, members of organizations
that routinely target civilians and exploit perfidious circumstances were
given the ability to argue for [*59] protections previously available only to
combatants who followed the rules. Detainees were quick to take advantage of
these opportunities. In Al Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013), a
member of the Taliban claimed protection as a medic under Article 24 of the
Geneva Convention despite the fact that he did not have the mandatory
insignia or identification the Convention requires. Indeed, Al Warafi was
captured carrying a weapon and had
previously served in a combat role. In Al-Bihani v. Obama, 590 F.3d 866,
871, 874 (D.C. Cir. 2010), a detained member of al Qaeda argued he must be
considered a civilian and released because he did not belong to an official
state military and had not had the opportunity to commit a direct hostile
act such as firing a weapon in combat. Thus, belligerents who did not play
by the rules of international law sought to claim the protections of that
law. It is true that the purpose of the Geneva Conventions is to protect
human rights during wartime — even the rights of combatants who flout the
Conventions — but it is hard to "reconcile this purpose with the concept
that a group which targets civilians may benefit from that very behavior, by
being afforded all the rights of the civilians it targets." Lewis,
International Myopia, supra, at 714-15.

In Hamdan I, the plurality seized [**55] upon the evolving nature of the
international law of war to extend the protections of that law to
nonconventional belligerents. But Bahlul argues this court should refuse to
allow the government to leverage that evolving nature to deter those
belligerents — an approach that would handcuff the United States to a
one-way ratchet. Instead, we should recognize that the international law of
war also adapts in a way that allows states to oppose nonconventional
combatants and protect themselves from terrorists. Even more importantly,
however, we must acknowledge that the development of international law is a
task entrusted by the Framers to the legislative branch. The judiciary must
give Congress extraordinary deference when it acts under its Define and
Punish Clause powers.

B

Under the approach to the Define and Punish Clause outlined above, which
gives proper regard to the dual
principles of flexibility and deference, the conspiracy charge against
Bahlul should stand. Even if the offense of conspiracy was not recognized
under international law in 2001 by the same labels used by Congress in the
2006 Military Commissions Act, the substance is similar. Indeed, it is to be
expected that international law, which was largely created by jurists
trained in the civil law and which only more recently has begun to absorb
common law ideas and institutions, differs formally from our own common law
tradition. See Colin B. Picker, International Law's Mixed Heritage: ACommon/Civil Law Jurisdiction, 41 VAND. J. TRANSNAT'L L. 1083, 1104-06
(2008). But that does not mean that when Congress decides to implement
international law domestically it cannot adapt that law to fit within our
common law institutions. Such adaptation is appropriate both because of the
evolving nature of international law and the necessities of implementing
international law in an established domestic legal system. International law
recognizes analogues to conspiracy and other inchoate offenses.

In civil law countries, conspiracy is generally treated as a mode of
liability requiring a completed crime. Peter Margulies, Defining, Punishing,and Membership in the Community of Nations: Material Support and ConspiracyCharges in Military Commissions, 36 FORDHAM INT'L L.J. 1, 84 (2013). In the
United States and [*60] other common law countries, however, conspiracy is treated
as a separate offense, requiring only an agreement and, in some instances,
an overt act furthering the agreement. Id.; see, e.g., 18 U.S.C. § 371
(conspiracy to defraud the United States). International law has adopted
something of a hybrid approach, recognizing conspiracy as a stand-alone
offense for some of the most serious war crimes — namely, genocide and
waging aggressive
war — and using conspiracy as a mode of establishing liability for all other
international law offenses.

With the exceptions of aggressive war and genocide, international law does
not recognize inchoate acts as stand-alone offenses, but as modes of
liability. For instance, the Rome Statute recognizes that a person will be
criminally [**56] responsible for a crime if that person "[i]n any ... way
contributes to the commission or attempted commission of such a crime by a
group of persons acting with a common purpose." Rome Statute of the
International Criminal Court, art. 25, § 3(d) (2002); see also id.§ 3(b) (a
person shall be guilty of an offense if he "[o]rders, solicits or induces
the commission of such a crime which in fact occurs or is attempted."); id.§ 3(c) (a person shall be guilty of an offense if he "aids, abets or
otherwise assists in its commission or its attempted commission, including
providing the means for its commission."). The difference between inchoate
offenses under domestic criminal law and the modes of liability under
international law is that international law requires that for someone to be
convicted of conspiracy, solicitation, or material support, the substantive
offense must have been completed or attempted. But in defining the crime of
conspiracy as an inchoate offense, Congress exercised precisely the kind of
discretion and flexibility the Define and Punish Clause envisions. Congress
adapted recognized international law to fit the country's particular needs
and legal system.[fn3]

It should be of no consequence that the form or name of the charges was
different from what might be charged in the International Criminal Court or
another international war tribunal. Whether the prosecutor demonstrates a
conspiracy to obtain a conviction on a substantive offense, or establishes a
conspiracy to commit a completed act as a stand-alone offense is a matter of
form that springs from the differences between common law and civil law
institutions. In matching military commission charges to international law
offenses, we should adopt a functional approach, looking at the conduct
involved rather than the label given to that conduct. It would be senseless
to limit military commissions' ability to try terrorists because the
government has not adopted the forms and names used by international
tribunals. Under a functional approach, Bahlul's conviction [*61] for conspiracy
is sufficiently grounded in international law.

Furthermore, recent international war crimes tribunals have recognized as
independent offenses conspiracy to commit genocide and conspiracy to wage
aggressive war. See 1 IMT 224-26 (recognizing the crime of conspiracy to
wage aggressive war but not recognizing conspiracy to commit war crimes and
crimes against humanity because the latter was not
defined as a separate crime in the Tribunal's charter); Updated Statute of
the International Criminal Tribunal for the Former Yugoslavia, art. 4 (2009)
(making punishable "conspiracy to commit genocide" as well as incitement or
attempt to commit genocide and complicity in genocide); Statute,
International Criminal Tribunal for Rwanda, art. 2 (2010) (same); Convention
on the Prevention and Punishment of the Crime of Genocide, art. 3 (1948)
(same). These offenses are the progeny of particular conflicts, created to
address new and previously unimaginable evils. Yet despite the innovative
and post [**57] hoc nature of these particular conspiracy prosecutions, there was
little if any protest that they violated ex post facto principles — the
abhorrent nature of the offenses vitiated any such "justice" arguments.
Similarly, it may be the time has come for international law to recognize
the offense of conspiracy to commit acts of terrorism. Terrorism may be the
global security challenge of the 21st Century, just like aggressive war was
in the early 20th Century and genocide was in the half century following
World War II. Perhaps the United States should be a leader in this area — a
leader in international law commensurate with its status as a military
leader in the war on terror — recognizing the offense of conspiracy to
commit acts of terrorism. These are not questions for the judiciary, but
rather for the legislature to answer. And Congress did so with the MCA,
broadly construing international law to include the offense of conspiracy.

C

The Framers and subsequent courts recognized that to define the law of
nations, Congress required a zone of deference. Without a measure of
deference, legislative fear of second-guessing would hobble Congress's power
under the Define and Punish Clause, leaving the nation subject to the
fate Madison depicted for most previous democratic experiments: "short in
their lives ... [and] violent in their deaths." THE FEDERALIST NO. 10,
supra, at 76 (James Madison). Contemporary international practice exhibits
the same kind of practical deference to permit individual states to assess
their own obligations. The principle of complementarity requires
international tribunals to accord deference to state investigations and
recognizes that what is mandated still leaves room for what is merely
permissive.

Hamdan I's plurality had no trouble extending Common Article 3 to members
of organizations like al Qaeda. As noted, by stretching Common Article 3 to
meet what it clearly perceived as a new exigency, the Court participated in
the law's evolution. Thus, courts seem permitted to interpret international
conventions to allow the humanitarian aspect of the law to evolve virtually
instantaneously. We cannot, on the other side of the equation, deny the
political branches the ability to respond to novel threats no matter how
destructive, and leave the nation at the mercy of an international consensus
and subject to the whims of hostile factions who could prevent agreement or
promote harmful agendas. See, e.g., Protocol Additional to the Geneva
Conventions of 12 August 1949, June 8, 1977. This cannot be the logical
import of arguing that the [*62] law of war is the law of nations. It would make
the Constitution a suicide pact; and the Define and Punish Clause had just
the opposite purpose. For international law to form a workable system,
states need a zone of deference. "Exercising judgment within this zone,
states could refine approaches that were broadly consistent with established
norms and also fostered global compliance." Margulies, Defining, Punishing,and Membership in the Community of Nations, [**58]supra, at 16; cf. New State IceCo. v. Liebmann, 285 U.S. 262, 386-87 (1932) (Brandeis, J., dissenting)
(advocating deference to states, which serve as laboratories of democracy).

Of course, deference does not mean there are no limits. We are always
subject to the limits which restrain any regime premised on natural law and
dedicated to the protection of natural rights. This is likely what the
international community meant with the Martens Clause's reference to the
"principles of international law" resulting from "the laws of humanity[] and
the requirements of the public conscience." Hague II, pmbl., July 29, 1899.
But a one-sided rigidity imposed on an inherently evolutionary international
law does not do justice, it thwarts it.

Congress's determination that conspiracy is an offense against the law of
nations constitutes a reasonable interpretation of international law and is
fully consistent with that law. Therefore, the judiciary is bound to uphold
Congress's exercise of authority under the Define and Punish Clause.

IV

Finally, I dissent with regard to the court's remand of residual issues to
a panel of this court. Bahlul's appeal has been before this court nearly
three years, and the court's decision ensures it will remain here at least
another term. Bahlul's jury trial, equal protection, and freedom of speech
challenges are clearly meritless. I would deny them all because Bahlul, as
an alien located outside the territorial United States, is not entitled to
the protections of the constitutional provisions he invokes, and,
alternatively, because his claims lack merit for the reasons stated by Judge
Kavanaugh. See Kavanaugh Op. Parts III, IV, and V. However, to the extent
the court was not ready to decide these
challenges, I would have asked the parties for supplemental briefing so we
could do so.

More problematic, however, is that by reviewing Bahlul's retroactivity
arguments under the plain error standard, the court disposes of this case
without providing the government clear guidance for prosecuting the
remaining detainees at Guantanamo. Thus, it may be many years before the
government receives a definitive answer on whether it can charge the
September 11 perpetrators with conspiracy, or whether Congress has the power
to make such an offense triable by military commission even prospectively.
The ability to charge conspiracy is an important prosecutorial tool in the
war on terror, where it can often be difficult for the government to procure
evidence directly connecting leaders of militant groups with specific terror
attacks.

The United States is engaged in a war on terrorism. As the various
iterations of Hamdan and this case demonstrate, the Executive Branch needs
concrete guidance as to how it can proceed with its prosecution of the
September 11 conspirators and other detainees. Bahlul was first charged
before a military commission ten years ago. Today, this court again leaves
the government without any definitive answers. The court does not express
respect to the coordinate branches of government by further delaying the
[**59] executive's prosecutorial [*63] efforts and thwarting the legislative's expressed
preference that detainees be tried by military commission. I would resolve
now the exceedingly important questions presented in this case.

* * *

For these reasons, I would affirm Bahlul's conspiracy conviction and
vacate his material support for terrorism and
solicitation convictions. I would remand to the Court of Military Commission
Review for it to address the consequences of our decision for Bahlul's life
sentence.

[fn1] In upholding Bahlul's conspiracy conviction, I would not rely on
18 U.S.C. § 2332(b). Indeed, by relying on Olano's fourth prong, the court
practically concedes that the existence of the conspiracy provision in Title
18 would not save Bahlul's conviction if not for the court's application of
a plain error standard. See Op. 32-35. I am also reluctant to rely on that
provision, however, because of the significant procedural differences
between criminal prosecutions in Article III civilian courts and
prosecutions before military commissions. The parties have not fully briefed
the issue, and I would be reluctant without such briefing to hold that a law
retroactively transferring jurisdiction to try an offense from an Article
III court to a military commission does not violate the Ex Post Facto
Clause. Because the court utilizes a plain error standard, the court also
does not fully embrace this novel and potentially far-reaching result.

[fn2] Judge Kavanaugh's reliance on the war powers clauses leaves unresolved
questions such as whether the government may try before a military
commission members of a terrorist organization with which the United States
is not engaged in active hostilities.

[fn3] Even under the international law standard requiring a completed
offense, Bahlul was properly convicted. The conspiracy charge alleges Bahlul
conspired to commit various substantive offenses, including murder of
protected persons, attacking civilians and civilian objects, murder in
violation of the law of war, destruction of property in violation of the law
of war, terrorism, and providing material support for terrorism. App. 120.
The charge alleges Bahlul committed eleven overt acts in furtherance of that
conspiracy. Among other overt acts, the military commission found Bahlul had
prepared martyr wills "in preparation for the acts of terrorism perpetrated
by ... Muhammed Atta, Ziad al Jarrah and others at various locations in the
United States on September 11, 2001" and "researched the economic effect of
the September 11, 2001 attacks on the United States." App. 122-23. Thus, the
military commission verdict incorporates the finding that Bahlul's
co-conspirators completed international law offenses — namely, the terrorist
attacks of September 11. See Findings Worksheet, App. 130, 133.

KAVANAUGH, Circuit Judge, concurring in the judgment in part and
dissenting in part:

Of the seven judges on the en banc Court for this case, five judges (all
but Judge Henderson and Judge Brown) agree in light of Boumediene v. Bush
that the Ex Post Facto Clause applies at Guantanamo. Indeed, the Government
concedes as much. Given the Government's concession, all seven judges on the
en banc Court (including Judge Henderson and Judge Brown) therefore apply
the Ex Post Facto Clause to analyze the offenses that were charged against
Bahlul under the Military Commissions Act of 2006. In doing so, all seven
judges reach the same bottom-line result that the Court reached in Hamdan II
(here, by virtue of the Ex Post Facto Clause; there, by virtue of the 2006
Act as informed by the Ex Post Facto Clause): A military commission may not
try the offense of material support for terrorism for conduct that occurred
before enactment of the 2006 Act.[fn1] All seven judges likewise conclude
that a military commission may not try the offense of solicitation for
conduct that occurred before enactment of the 2006 Act. The Court is
unanimous that those two offenses were not war crimes triable by military
commission at the time of Bahlul's conduct in 2001. Therefore, all seven
judges agree that we must vacate Bahlul's material support for terrorism and
solicitation convictions as ex post facto violations.

As to conspiracy, six of the seven judges (all but Judge Rogers) uphold
Bahlul's conspiracy conviction against his ex post facto objection. Two of
us (Judge Brown and I) would do so by employing de novo review and
concluding that conspiracy, unlike material support for terrorism and
solicitation, has long been an offense triable by military commission,
including at the time of Bahlul's conduct in 2001. The majority opinion
likewise upholds Bahlul's conspiracy conviction but does so by employing
plain error review. The majority opinion believes that Bahlul forfeited his
ex post facto objection by not raising the objection at trial.

I write separately to explain my analysis of these difficult questions, in
particular my analysis of the conspiracy issue.

On September 11, 2001, Osama bin Laden learned the results of al Qaeda's
attack on the United States by listening to a radio. That radio was operated
by bin Laden's trusted aide, Ali Hamza Ahmad Suliman al Bahlul. A native of
Yemen, [*64] Bahlul had moved to Afghanistan in the late 1990s to join al Qaeda.
Al Qaeda was and remains an international organization whose stated goals
are to drive the United States from posts in the Middle East, to destroy the
State of Israel, and to dislodge moderate [**60] Islamic regimes and establish
radical Islamic control over the greater Middle East. To advance its broad
objectives, al Qaeda employs terrorist attacks on civilian and military
targets.

After his arrival in Afghanistan in the late 1990s, Bahlul became deeply
embedded in al Qaeda's operations. He pledged allegiance to bin Laden. He
trained at an al Qaeda terrorist camp. He was appointed by bin Laden to lead
al Qaeda's media and propaganda operation. Bahlul produced a recruitment
video glorifying al Qaeda's October 2000 bombing of the U.S.S. Cole, an
attack that killed 17 Americans.
Bahlul personally arranged the loyalty oath and transcribed the "martyr
will" of Mohammed Atta, Bahlul's one-time roommate and the hijacker who flew
American Airlines Flight 11 into the North Tower of the World Trade Center
on September 11th. Bahlul performed the same services for Ziad Jarrah,
another of Bahlul's former roommates, who hijacked and piloted United
Airlines Flight 93, the flight that apparently was headed to destroy the
U.S. Capitol Building or the White House until it was downed in a
Pennsylvania field by American passengers who fought back. Bahlul later said
that he himself would have participated on September 11th as hijacker number
20, but bin Laden deemed his "media man" too essential to lose.

By the time of the attacks on September 11, 2001, bin Laden, Bahlul, and
other senior al Qaeda leaders had already evacuated from al Qaeda's
headquarters in Kandahar and relocated to a remote mountainous region
between Kabul and Khost. Soon thereafter, Bahlul fled from Afghanistan to
Pakistan. In late 2001, while in Pakistan, he was captured. Since 2002, he
has been detained by the U.S. Military at the U.S. Naval Base in Guantanamo
pursuant to the 2001 Authorization for Use of Military Force. See Pub. L.
No. 107-40, § 2(a), 115 Stat. 224, 224. The AUMF remains in effect and
authorizes the Government to detain enemy combatants "for the duration of
the relevant conflict" – in this instance, the ongoing global war that the
United States and its allies are engaged in against al Qaeda and its
associated forces. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (controlling
opinion of O'Connor, J.); see Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir.
2011).[fn2]

In addition to detaining Bahlul, the U.S. Government also exercised its
well-established authority to try him before a military commission for war
crimes. See10 U.S.C. § 948d (2006); 10 U.S.C. § 821 (2000); Hamdan v.Rumsfeld, 548 U.S. 557, 592-93 (2006); In re Yamashita, 327 U.S. 1, 7-8
(1946); Ex parte Quirin, 317 U.S. 1, 28 (1942). The Government ultimately
charged Bahlul with three offenses specified in the Military Commissions Act
of 2006: conspiracy to commit war crimes, material support for terrorism,
and solicitation of war crimes. See Pub. L. No. 109-366, 120 Stat. 2600;
10 U.S.C. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). Bahlul did not contest
the relevant factual allegations, [*65] but he vehemently objected to the
legitimacy of the military commission proceeding. The military commission
convicted Bahlul of all three offenses and sentenced him to life in prison.
The U.S. Court of Military Commission Review affirmed. See United States v.Bahlul, 820 F.Supp.2d 1141 (C.M.C.R. 2011) (en banc). Bahlul appealed to
this Court, and we granted en [**61] banc review.

Bahlul challenges his military commission convictions on five distinct
constitutional grounds: (i) the Article I Ex Post Facto Clause, (ii) the
Article I Define and Punish Clause, (iii) the jury trial protections of
Article III and the Fifth and Sixth Amendments, (iv) the equal protection
component of the Due Process Clause of the Fifth Amendment, and (v) the free
speech protections of the First Amendment.

With respect to his material support for terrorism and solicitation
convictions, Bahlul's Ex Post Facto Clause
argument is correct because those offenses were not war crimes triable by
military commission at the time of Bahlul's conduct in 2001. With respect to
his conspiracy conviction, however, Bahlul's Ex Post Facto Clause challenge
lacks merit because conspiracy has long been proscribed under U.S. law as a
war crime triable by military commission, including at the time of Bahlul's
conduct. Bahlul's other arguments are all unavailing. Therefore, I would
affirm Bahlul's conspiracy conviction, vacate his material support for
terrorism and solicitation convictions as ex post facto violations, and
remand to the U.S. Court of Military Commission Review for it to address the
consequences, if any, for Bahlul's life sentence.

I

Bahlul's primary argument to this Court rests on the Ex Post Facto Clause
of Article I, Section 9 of the Constitution. See U.S. CONST. art. I, § 9,
cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."). Among
other things, the Ex Post Facto Clause bars retroactive prosecution of new
offenses. See Peugh v. United States, 133 S.Ct. 2072, 2081 (2013); Collinsv. Youngblood, 497 U.S. 37, 42-43, 52 (1990). Bahlul contends that (i) the
Ex Post Facto Clause applies to military commissions at Guantanamo and (ii)
the three offenses in the 2006 Act that were charged against him –
conspiracy to commit war crimes, material support for terrorism, and
solicitation of war crimes – were new offenses that were not triable by
military commission at the time of his conduct back in 2001.

In response, the Government concedes (correctly) that the Ex Post Facto
Clause applies to military commissions at Guantanamo. Cf. Boumediene v.Bush, 553 U.S. 723, 766-71 (2008).[fn3]
And the Government all but concedes ([*66] again correctly) that material support
for terrorism and solicitation
were new offenses that were not triable by military commission back in 2001.
See Hamdan v. United States, 696 F.3d 1238, 1252 (D.C. Cir. 2012) (HamdanII). But the Government forcefully argues that one of the three offenses
charged against Bahlul, conspiracy, was not a new offense. According to the
Government, conspiracy has long been triable by military commission under
U.S. law, including at the time of Bahlul's conduct.

The relevant military commission law in effect at the time of Bahlul's
conduct was 10 U.S.C. § 821. That statute was first enacted in 1916 and then
re-enacted in 1950 as part of the Uniform Code of Military Justice. See Pub.
L. No. 81-506, 64 Stat. 107, 115 (1950); Pub. L. No. 64-242, 39 Stat. 619,
653 (1916). As of 2001, at the time of Bahlul's conduct, Section 821
provided as follows:

The provisions of this chapter conferring jurisdiction upon
courts-martial do not deprive military commissions, provost courts,
or other [**62] military tribunals of concurrent jurisdiction with respect
to offenders or offenses that by statute or by the law of war may be
tried by military commissions, provost courts, or other military
tribunals.

As the Deputy Solicitor General aptly stated at oral argument, the
question at the heart of this case is whether, as of 2001, conspiracy to
commit war crimes was an offense proscribed under the "law of war" prong of
Section 821.
See Tr. of Oral Arg. at 15-20. The Supreme Court faced that exact same
question in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Court as a whole
did not decide the issue because it was not necessary to do so given the
Court's conclusion that the military commissions then in place were unlawful
on certain procedural grounds. As a result, there is no binding precedent
from that case on the conspiracy issue. But seven Justices opined on the
conspiracy question and split 4-3 in contrasting opinions written by Justice
Stevens and Justice Thomas. (Justice Kennedy did not address the conspiracy
charge. Chief Justice Roberts did not take part in the case.) Justice
Stevens's opinion concluded that conspiracy [*67] was not a law of war offense
under Section 821. See548 U.S. at 600-12. Justice Thomas's opinion
concluded that conspiracy was a law of war offense under Section 821. Seeid. at 697-706.

Importantly for our purposes as a lower court, all seven Justices who
addressed the Section 821 "law of war" issue in Hamdan agreed that it turned
on the content of the "common law of war" and required careful evaluation of
historical U.S. military commission precedents involving conspiracy. Id. at
602 (Stevens, J.); id. at 689 (Thomas, J.). Although the two opinions
reached different answers, they considered the same basic question: Did the
U.S. military commission precedents suffice to show that conspiracy was a
law of war offense triable by military commission under Section 821?

The detailed historical inquiry undertaken by the seven Justices in Hamdan
was not idle background discussion. On the contrary, the historical inquiry
followed from the text of Section 821. Enacted in 1916 when Congress amended
the Articles of War and set forth new rules for courts-martial, and then
re-enacted in 1950 as part of the Uniform Code of Military Justice, Section
821 provided that the new rules
governing courts-martial did not "deprive" military commissions of their
pre-existing authority. 10 U.S.C. § 821 (2000).[fn4] Notwithstanding Section
821's somewhat unusual negative phrasing, the Supreme Court has repeatedly
interpreted Section 821 as affirmative statutory authorization for the
Executive Branch to convene military commissions to try war crimes. SeeHamdan, 548 U.S. at 592; In re Yamashita, 327 U.S. 1, 7-8 (1946); Ex parteQuirin, 317 U.S. 1, 28 (1942). With its reference to statutory offenses,
Section 821 authorizes military commissions to try offenses such as spying
and aiding the enemy that are triable by military commission under federal
statute. See10 U.S.C. §§ 904, 906 (2000); Quirin, 317 U.S. at 41-42. With
its reference to the "law of war," a term that encompasses the international
law of war, Section 821 authorizes military commissions to try offenses [**63] that
are war crimes under international law. See Yamashita, 327 U.S. at 7, 14-16.
Moreover, as the seven Justices in Hamdan recognized with their extensive
focus on U.S. military commission precedents – and as the Supreme Court
stated in Madsen v. Kinsella in 1952 and Yamashita in 1946 – Section 821's
"law of war" prong also expressly preserved the authority of military
commissions to try offenses that had traditionally been tried by U.S.
military commissions as of 1916 and 1950. See Madsen v. Kinsella,
343 U.S. 341, 352 (1952) (statute "states unequivocally that Congress has
not deprived such commissions or tribunals of
the existing jurisdiction which they had over such offenders and offenses as
of August 29, 1916"); Yamashita, 327 U.S. at 20 (statute authorized military
commissions "to preserve their traditional jurisdiction over enemy
combatants"); cf. Sekhar v. United States, 133 S.Ct. 2720, 2724 (2013) (when
"a word is obviously [*68] transplanted from another legal source, whether the
common law or other legislation, it brings the old soil with it") (internal
quotation mark omitted).

Bahlul nevertheless argues that the phrase "law of war" in Section 821
encompasses only international law offenses and not those offenses
traditionally triable by U.S. military commissions. In other words, Bahlul
says that Section 821, although expressly crafted not to "deprive" U.S.
military commissions of their existing common-law authority over conspiracy
and other offenses, did in fact deprive military commissions of that
authority for offenses that were not also proscribed by the international
law of war.

Bahlul's argument that Section 821's "law of war" prong consists
exclusively of international law offenses is inconsistent with the text and
textually stated purpose of Section 821, as well as with Supreme Court
precedents such as Madsen and Yamashita interpreting Section 821. Perhaps
most tellingly for present purposes, Bahlul's interpretation of Section 821
conflicts with what the Supreme Court actually did in Hamdan. Seven Justices
in Hamdan analyzed the "law of war" embodied in Section 821 as the
international law of war supplemented by established U.S. militarycommission precedents. Indeed, that is the only interpretation of Section
821 that squares with how the seven Justices analyzed the question in
Hamdan.

In short, at the time of Bahlul's conduct, Section 821 authorized military
commissions to try offenses drawn from
three bodies of law: federal statutes defining offenses triable by military
commission, the international law of war, and historical U.S. military
commission tradition and practice as preserved by Congress when it enacted
Section 821 in 1916 and 1950.[fn5]

At the time of Bahlul's conduct, neither any federal statute nor the
international law of war proscribed conspiracy as a war crime triable by
military commission. So the question we must decide is whether U.S. military
commission precedents treated conspiracy as an offense triable by military
commission. In other words, we must decide the question that was addressed
by seven Justices in Hamdan but not decided by the Court. [**64] The answer, in my
view, is yes: U.S. military commission precedents have treated conspiracy as
an offense triable by military commission.

I base that conclusion in substantial part on the 1865 military commission
conviction of the conspirators who
plotted to assassinate President Lincoln. Put simply, the military
commission trial of the Lincoln conspirators is the highest-profile and most
important U.S. military commission precedent in American history. President
Andrew Johnson, after seeking the advice of the Attorney General, decided to
[*69] try the Lincoln conspirators by military commission for violating the law of
war rather than by criminal trial in civilian court. See Military
Commissions, 11 Op. Attorney Gen. 297 (1865); see also Ex parte Mudd,
17 F. Cas. 954 (S.D. Fla. 1868). The Lincoln conspirators were expressly
charged with and convicted of conspiracy – in that case, conspiracy to
violate the law of war by killing the President and Commander in Chief of
the Union Army, Abraham Lincoln. Indeed, conspiracy was the only offense
charged against them. After an extensive multi-week trial and vigorous
argument about the facts and the commission's jurisdiction, numerous
conspirators were convicted, and several of them were sentenced to death and
executed.

In considering the history of U.S. military commissions, particularly at
the time of Section 821's original enactment in 1916 and its re-enactment in
1950, the Lincoln conspirators case looms as an especially clear and
significant precedent.

The Lincoln conspirators precedent does not stand alone. The second
highest-profile and second most important U.S. military commission in
American history was the military commission trial of the Nazi saboteurs who
secretly crossed into the United States during World War II. Again, the
defendants were expressly charged with and convicted of conspiracy, as well
as of another law of war offense. The Attorney General of the United States
personally prosecuted the case before the military commission. President
Franklin Roosevelt, the Commander in Chief of the Army and Navy, reviewed
and affirmed all of the convictions.
Upon its review, the Supreme Court affirmed the saboteurs' convictions based
on the other law of war offense, making it unnecessary to address
conspiracy. See Quirin, 317 U.S. at 46. Like the Lincoln conspiracy
precedent, the trial of the Nazi saboteurs still stands as a major precedent
in which a U.S. military commission charged and convicted the defendants of
conspiracy.

To summarize so far: As of 1950 when Congress re-enacted Section 821 as
part of the Uniform Code of Military Justice and expressly preserved the
traditional authority of U.S. military commissions, the two most well-known
and important U.S. military commissions in American history tried and
convicted the defendants of conspiracy.

And there were other significant precedents as well. For example, later in
World War II, the Government prosecuted another set of Nazi saboteurs by
military commission for conspiracy. In that case, Assistant Attorney General
Tom [**65] Clark produced a formal memorandum concluding – based in large part on
the precedents involving the Lincoln conspirators and the earlier Nazi
saboteurs – that conspiracy was a law of war offense triable by military
commission. See Memorandum from Tom C. Clark, Assistant Attorney General, to
Myron C. Kramer, Judge Advocate General (Mar. 12, 1945), reprinted in U.S.
Supp. App. 133-139. The military commission subsequently convicted the
defendants of conspiracy. President Truman reviewed and affirmed the
convictions. And after one of those Nazi saboteurs later challenged his
conviction in court, the Tenth Circuit upheld the conviction, including the
conspiracy conviction, in an opinion by Judge Murrah. See Colepaugh v.Looney, 235 F.2d 429 (10th Cir. 1956).

To be sure, against those landmark American precedents, some international
tribunals and conventions subsequent to the original enactment of Section
821 have chosen not to make conspiracy a war crime triable by military
commission. Most notably, the International Military Tribunal at Nuremberg
did not identify conspiracy [*70] to commit war crimes as an offense triable
before that Tribunal. But the Tribunal reached that conclusion over the
objections of the American prosecution team led by Justice Robert Jackson,
and the Tribunal did so in part because conspiracy was not recognized by
European law. See Hamdan, 548 U.S. at 611 (Stevens, J.); id. at 702 n.14
(Thomas, J.).

In any event, what matters for present purposes is that at the time of
Bahlul's conduct, no authoritative source of U.S. law had ever negated the
validity or authority of the U.S. military commission convictions of the
Lincoln assassins for conspiracy or of the Nazi saboteurs for conspiracy. In
1916, when it enacted Section 821, as well as in 1950 when it re-enacted the
statute, Congress was aware of those significant precedents. See id. at 592
& n.22 (majority opinion) (recounting legislative history of 1950 enactment
and noting Congress's awareness of Quirin precedent); Madsen,
343 U.S. at 353 & n.20 (recounting legislative history of 1916 enactment,
including discussion of Civil War, Mexican-American War, and
Spanish-American War precedents); A Bill to Unify, Consolidate, Revise, andCodify the Articles of War, Hearing on H.R. 2498: Before Subcommittee No. 1of the House Committee on Armed Services, 81st Cong. 962 (1949) ("A
classical example of the military tribunal is the trial of the Lincoln
conspirators.") (testimony of Colonel John P. Dinsmore); see also Trials byCourts-Martial: Hearing on S. 5320 Before the Senate Committee on MilitaryAffairs, 65th Cong. 279 (1919) (Judge Advocate General Enoch H. Crowder
discussing Lincoln conspirators trial).
Moreover, the leading authority on military commissions at the time of both
enactments, Colonel William Winthrop's treatise on military law, repeatedly
referenced the Lincoln conspirators precedent. See WILLIAM WINTHROP,
MILITARY LAW AND PRECEDENTS 167, 169, 185 n.38, 334 n.40, 834 & n.77, 836
n.90, 839 n.5 (rev. 2d ed. 1920).

By stating that Section 821 did not "deprive" military commissions of
their traditional authority, Congress necessarily [**66] incorporated the Lincoln
assassins precedent for conspiracy when it enacted the original version of
Section 821 in 1916, and it incorporated the Lincoln assassins and Nazi
saboteur precedents for conspiracy when it re-enacted the statute in 1950 as
part of the Uniform Code of Military Justice. After all, it would be rather
bizarre to conclude that Congress, by enacting a statute that said it did
not "deprive" military commissions of their traditional authority, in fact
silently overruled the two most significant and well-known military
commission precedents in American history. Since 1950, moreover, Congress
has never backed away from its express preservation of traditional U.S.
military commission authority over conspiracy. Indeed, in the 2006 Act,
Congress reiterated its longstanding intent and belief that conspiracy has
"traditionally been triable by military commissions." 10 U.S.C. § 950p(a)
(2006).

At the time of Bahlul's conduct, the other two Branches likewise had never
undermined the validity of the Lincoln conspirators and Nazi saboteur
precedents. No U.S. court had ever cast any doubt on those landmark military
commission convictions, or on trying conspiracy by military commission. And
in the Executive Branch, there is a straight line from now to then: In
deciding that conspiracy is an offense that may be tried by military
commission, President Barack Obama is the same as President George W. Bush
is the same as President
Harry Truman is the same as President Franklin Roosevelt is the same as
President Andrew Johnson is the same as President Abraham Lincoln.
[*71]

In light of the clear and consistent historical record in the United
States as of the time of Bahlul's conduct in 2001 – in all three Branches of
the U.S. Government – it is ultimately not persuasive to say, as Bahlul
does, that conspiracy was a brand new U.S. military commission offense
created by the 2006 Act. If we indulge the idea that Bahlul, holed up with
bin Laden somewhere in the hills of Afghanistan, consulted U.S. military
commission law on conspiracy back in 2001, he would have readily found the
two most well-known U.S. military commission precedents, the landmark
Lincoln assassin and Nazi saboteur cases in which the defendants had been
convicted of conspiracy.

In sum, conspiracy was triable by military commission under the law of war
prong of Section 821 at the time of Bahlul's conduct in 2001. The Ex Post
Facto Clause therefore does not bar the Government's prosecution of Bahlul
under the 2006 Act for conspiracy. And for that same reason, to the extent
that Bahlul argues that the 2006 Act itself incorporates ex post facto
principles and bars retroactive prosecution of new offenses, the 2006 Act
likewise does not bar the Government's prosecution of Bahlul for
conspiracy.[fn6]

By contrast, as the Government all but concedes, there is no historical
U.S. military commission precedent for trying the offenses of material
support for terrorism and solicitation before U.S. military commissions. And
those two offenses are not international law of war offenses, [**67] nor were they
triable by military commission under any other federal statute at the time
of Bahlul's conduct. The Government's actions between the attacks of
September 11, 2001, and the enactment of the 2006 Act underscore that
material support for terrorism and solicitation have not been thought to be
Section 821 "law of war" offenses. During that time, the United States
charged 10 al Qaeda defendants before military commissions. The United
States did not charge any of them with material support for terrorism or
solicitation, presumably because it was widely understood that those two
offenses were not covered under Section 821. By contrast, the United States
charged all 10 al Qaeda defendants with conspiracy, presumably because the
Government believed, based on the
historical precedents, that conspiracy was covered under Section 821.

In short, unlike conspiracy, material support for terrorism and
solicitation were [*72] not covered under Section 821 at the time of Bahlul's
conduct in 2001. See Hamdan II, 696 F.3d at 1252 (concluding that material
support for terrorism was not covered under Section 821). Bahlul's
convictions for material support for terrorism and solicitation therefore
must be vacated as ex post facto violations.

II

In challenging his convictions, Bahlul also advances a far more sweeping
constitutional argument. He contends that Congress lacks constitutional
authority to make conspiracy, material support for terrorism, or
solicitation war crimes triable by military commissions, even prospectively,
because those offenses are not proscribed under the international law of
war. Bahlul's argument, in essence, is that the U.S. Constitution (as
relevant here) incorporates international law and thereby interposes
international law as a constitutional constraint on what crimes Congress may
make triable by military commission. On its face, that is an extraordinary
argument that would, as a matter of U.S. constitutional law, subordinate the
U.S. Congress and the U.S. President to the dictates of the international
community – a community that at any given time could be unsupportive of or
even hostile to U.S. national security interests as defined by Congress and
the President. And because conspiracy is not and has not been an offense
under the international law of war, the argument would render the Lincoln
conspirators and Nazi saboteur convictions for conspiracy illegitimate and
unconstitutional. I would reject the argument.

Bahlul spins out the argument in two different ways. First, he contends
that Congress's authority to create offenses triable by military commission
stems exclusively from the Article I Define and Punish Clause, which
allegedly confines military commissions to trying only international law of
war offenses. I will consider that argument in this Part II of the opinion.
Second, Bahlul contends that the jury trial protections of Article III and
the Fifth and Sixth Amendments generally require jury trials, and that the
exception to those jury trial protections for military [**68] commissions applies
only to international law of war offenses. I will consider that argument in
Part III below.[fn7]

Bahlul says that Congress may enact offenses triable by U.S. military
commissions only under Congress's Article I, Section 8 power to "define and
punish ... Offences against the Law of Nations." U.S. CONST. art. I, § 8,
cl. 10. Because conspiracy is not an offense under international law, Bahlul
argues that Congress lacked power under Article I, Section 8 to make the
offense triable by military commission.

The premise of this argument is incorrect. As the Supreme Court has
repeatedly stated, Congress's authority to establish military commissions to
try war crimes does not arise exclusively from the Define and Punish Clause.
On the contrary, as the Supreme Court has explained, Congress also has
authority to establish military commissions to try war
crimes under the Declare War and Necessary and Proper Clauses of Article I,
Section 8. See[*73] U.S. CONST. art. I, § 8, cls. 11, 18; Hamdan v. Rumsfeld,
548 U.S. 557, 591-92 & n.21 (2006); Madsen v. Kinsella, 343 U.S. 341, 346
n.9 (1952); Ex parte Quirin, 317 U.S. 1, 26-31 (1942); see also WILLIAM
WINTHROP, MILITARY LAW AND PRECEDENTS 831 (rev. 2d ed. 1920) (military
commission "is simply an instrumentality for the more efficient execution of
the war powers vested in Congress and the power vested in the President as
Commander-in-chief in war"). And unlike the Define and Punish Clause, the
Declare War Clause and the other Article I war powers clauses do not refer
to international law and are not defined or constrained by international
law. In other words, at least as a matter of U.S. constitutional law (as
distinct from international law), the United States is not subject to the
whims or dictates of the international community when the United States
exercises its war powers. Therefore, under the text of Article I,
international law is not a constitutional constraint when Congress
proscribes war crimes triable by military commission.

That interpretation also follows from historical practice. In accordance
with the constitutional text, Congress since the earliest days of the
Republic has gone beyond international law in proscribing war crimes triable
by military commission. See10 U.S.C. §§ 950t(26), 950t(27) (2012) (aiding
the enemy and spying); 10 U.S.C. §§ 904, 906 (2000) (same); Articles of War
of 1806, 2 Stat. 359, 366, 371 (1806) (same). That historical practice
strongly supports the conclusion that international law is not a
constitutional constraint when Congress proscribes war crimes triable by
military commission. Cf. NLRB v. Noel Canning, No. 12-1281 (U.S. June 26,
2014) (relying on longstanding historical practice to interpret
Constitution).

And perhaps most important for us as a lower court is the Supreme Court's
decision in Quirin. There, the Court rejected various constitutional
challenges to military commissions. In so doing, the Court emphasized among
other things that U.S. military commissions have long possessed statutory
authority to try the offense of spying, which was not and has never been an
offense under the international law of war. See Quirin, 317 U.S. at 41-42;
see also U.S. Br. 71 (spying not an international law of war offense);
National [**69] Institute of Military Justice Amicus Br. 18 n.8 (same); Hamdan v.United States, 696 F.3d 1238, 1246 n.6 (D.C. Cir. 2012) (Hamdan II)
(Kavanaugh, J., concurring) (same). Quirin's approval of spying, a
non-international-law-of-war offense, as an offense triable by military
commission confirms that Congress has authority under the Constitution to
make non-international-law-of-war crimes triable by military commission.

In short, the constitutional text, longstanding statutes, and Supreme
Court precedent all demonstrate that Article I does not limit Congress to
international law of war offenses when it proscribes war crimes triable by
military commission.

III

Citing the jury trial protections of Article III and the Fifth and Sixth
Amendments, Bahlul reprises the same basic argument that U.S. military
commissions may try only international law of war offenses. This version of
Bahlul's argument begins with the premise that the Constitution requires all
crimes to be tried by jury. Bahlul recognizes, as he must, that the Supreme
Court in Quirin nonetheless permitted trial by military commission for war
crimes. See Ex parte Quirin, 317 U.S. 1, 38-45 (1942); see also Hamdan v.Rumsfeld, 548 U.S. 557, 592-93 (2006). [*74] But Bahlul says that
this exception to the jury trial right extends only to international law of
war offenses.

To begin with, there is no textual support for Bahlul's theory. There is
no textual reason to think that the exception to the jury trial protections
for military commissions is somehow confined to international law of war
offenses. That exception, as the Supreme Court has explained, stems from the
various war powers clauses in Article I and Article II. And those war powers
clauses are not defined or constrained by international law. See Hamdan,
548 U.S. at 591-92; Quirin, 317 U.S. at 25-27.

Moreover, Bahlul's novel theory contravenes precedent: It is inconsistent
with the Lincoln conspirators and Nazi saboteurs conspiracy convictions, and
it cannot be squared with Quirin.

In Quirin, the defendants argued that they had a constitutional right to
trial by jury and thus could not be tried by military commission. At some
length, the Court in Quirin specifically rejected the defendants' Article
III and Fifth and Sixth Amendment jury trial objections to trial by military
commission. See Quirin, 317 U.S. at 38-45. The Court explained that the
Constitution's jury trial provisions "did not enlarge the right to jury
trial" beyond the right as it existed at common law. Id. at 39. Because the
common law did not preclude military commission trials, "Article III and the
Fifth and Sixth Amendments cannot be taken to have extended the right to
demand a jury to trials by military commission." Id. at 40.

For present purposes, two things are notable about Quirin. First, in
reaching its conclusion on the jury trial issue, the Court relied on the
fact that Congress had made spying an
offense triable by military commission since the earliest days of the
Republic. The Court said that the early Congress's enactment of the spying
statute "must be regarded as a contemporary construction" of both Article
III and the Fifth and Sixth Amendments "as not foreclosing trial by military
tribunals, without a jury, of offenses [**70] against the law of war committed by
enemies not in or associated with our Armed Forces." Id. at 41. "Such a
construction," the Court said, "is entitled to the greatest respect." Id. at
41-42. To reiterate, the offense of spying on which the Court relied was not
and has never been an offense under the international law of war. It thus
makes little sense to read Quirin as barring military commission trial of
non-international-law-of-war offenses when Quirin, in rejecting a jury trial
objection to military commissions, relied expressly on a longstanding
statute making a non-international-law-of-war offense triable by military
commission. Second, nothing about the Court's reasoning in Quirin on this
point depended on whether the offense tried before a military commission was
an international law of war offense or, by contrast, was a military
commission offense recognized only by U.S. law. In other words, the Court
never stated that military commissions are constitutionally permitted only
for international law of war offenses, which one would have expected the
Court to say if the Court believed that military commissions are
constitutionally permitted only for international law of war offenses.

In short, neither Article I nor the jury trial protections of Article III
and the Fifth and Sixth Amendments limit Congress to the international law
of war when Congress proscribes war crimes triable by military commission.
Put another way, the United States may be a leader in the international
community, not just a follower, [*75] when Congress authorizes war against a
terrorist organization or makes
crimes such as conspiracy war crimes triable by military commission. To be
sure, it can be quite prudent (and in some circumstances required as a
matter of international law) for Congress and the President to coordinate
closely with the international community and to pay careful attention to
international law when authorizing war and enacting war crimes triable by
military commission. But those policy factors, political realities, and
international law considerations are not constitutional constraints
incorporated into the Article I war powers clauses or the jury trial
guarantees of Article III and the Fifth and Sixth Amendments.

IV

Bahlul also raises an equal protection challenge under the Due Process
Clause of the Fifth Amendment. Bahlul argues that the Military Commissions
Act of 2006 violated equal protection principles because it was
underinclusive in authorizing military commission trials of alien enemy
combatants but not of U.S. citizen enemy combatants. See10 U.S.C. §§ 948b(a), 948c, 948d(a) (2006); Bolling v. Sharpe, 347 U.S. 497,
499 (1954) (Fifth Amendment includes equal protection component). That
argument is meritless.

The Government correctly points out that many federal laws draw
distinctions between U.S. citizens and aliens, and that the Supreme Court
has upheld many such laws. See, e.g., Demore v. Kim, 538 U.S. 510, 522
(2003); Mathews v. Diaz, 426 U.S. 67, 78-80 (1976); see also Bluman v. FEC,
800 F.Supp.2d 281, 287 (D.D.C. 2011), affirmed, 132 S.Ct. 1087 (2012). The
Supreme Court has explained that any federal "policy toward aliens is
vitally and intricately interwoven [**71] with contemporaneous policies in regard
to the conduct of foreign relations, the war power, and the maintenance of a
republican form of government" and that such "matters are so
exclusively entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference." Mathews,
426 U.S. at 81 n.17 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 588-89
(1952)). As a result, federal laws drawing distinctions between U.S.
citizens and aliens – particularly in the context of war and national
security – are generally permissible so long as they are rationally related
to a legitimate governmental interest. See Demore, 538 U.S. at 527-28;
Mathews, 426 U.S. at 83; United States v. Ferreira, 275 F.3d 1020, 1025-26
(11th Cir. 2001); United States v. Lue, 134 F.3d 79, 87 (2d Cir. 1998);
Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979). Here, Congress
chose to create a distinct system of military commissions to try non-U.S.
citizens who commit war crimes. The Government reasonably explains that
"Congress had a vital national security interest in establishing a military
forum in which to bring to justice foreign unlawful belligerents whose
purpose it is to terrorize innocent U.S. citizens and to murder U.S.
military personnel." U.S. Panel Br. 86. Such a wartime distinction between
alien enemy combatants and U.S. citizens easily satisfies rational basis
review. Cf. Johnson v. Eisentrager, 339 U.S. 763, 768-77 (1950). Bahlul's
equal protection challenge has no merit.

V

Bahlul also raises a First Amendment argument, claiming that he was
unconstitutionally [*76] prosecuted for his political speech, including his
production of the al Qaeda recruitment video celebrating the terrorist
attack on the U.S.S. Cole. That argument, too, lacks any merit.

As an initial matter, Bahlul was convicted of conspiracy based on his
conduct. The military commission found that Bahlul, among other acts,
"traveled to Afghanistan with the
purpose and intent of joining al Qaeda," "underwent military-type training
at an al Qaeda sponsored training camp," "acted as personal secretary and
media secretary of Usama bin Laden in support of al Qaeda," arranged for two
September 11th hijackers to pledge loyalty oaths to bin Laden, and "operated
and maintained data processing equipment" "for the benefit of Usama bin
Laden." App. 122-23.

Moreover, although non-U.S. citizens arguably may have some First
Amendment rights at Guantanamo or in other U.S. territories for any speech
they engage in there, non-U.S. citizens have no First Amendment rights
abroad in foreign countries. The Supreme Court has applied the Constitution
to aliens in the United States and in U.S. territories, but has not extended
constitutional rights to aliens in foreign countries. See Boumediene v.Bush, 553 U.S. 723, 768-71 (2008) (applying Article I, Section 9 to U.S.
Naval base at Guantanamo, which was "[i]n every practical sense ... not
abroad"); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (declining
to apply Fourth Amendment to search and seizure of alien's property in
Mexico); Johnson v. Eisentrager, 339 U.S. 763 (1950) (declining to apply
habeas corpus right to U.S.-controlled military prison in Germany); see alsoAl Maqaleh v. Hagel, 738 F.3d 312 (D.C. Cir. 2013) (declining to apply
habeas corpus right to U.S. military base in Afghanistan); Al Maqaleh [**72] v.Gates, 605 F.3d 84 (D.C. Cir. 2010) (same). Therefore, Bahlul had no First
Amendment rights as a non-U.S. citizen in Afghanistan when he led bin
Laden's media operation.

In addition, even if the First Amendment did apply to Bahlul's speech in
Afghanistan, the Supreme Court has made clear that the First Amendment does
not protect speech such as Bahlul's that is "directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action."
Virginia v. Black, 538 U.S. 343, 359 (2003) (quoting Brandenburg v. Ohio,
395 U.S. 444, 447 (1969)); see also United States v. Stevens, 559 U.S. 460,
471 (2010) (First Amendment not understood to protect "speech or writing
used as an integral part of conduct in violation of a valid criminal
statute"). That is particularly true when the Government seeks "to prevent
imminent harms in the context of international affairs and national
security." Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010); seeUnited States v. Rahman, 189 F.3d 88, 116-18 (2d Cir. 1999). Under that
traditional test, the speech encompassed within the charges against Bahlul –
including a terrorist recruitment video produced on foreign soil that "was
aimed at inciting viewers to join al Qaeda, to kill Americans, and to cause
destruction" – was not protected speech under the First Amendment. UnitedStates v. Bahlul, 820 F.Supp.2d 1141, 1249 (C.M.C.R. 2011) (en banc). The
Constitution is not a suicide pact. Cf. Terminiello v. City of Chicago,
337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

VI

A few words in response to the majority opinion: I find the majority
opinion surprising [*77] both in what it decides and in what it declines to
decide.

First, I am surprised by what the majority opinion decides. After all, the
majority opinion reaches the same bottom-line conclusion that this Court
reached in Hamdan II: The offense of material support for terrorism may not
be tried by military commission for conduct that occurred before the 2006
Act. But the majority opinion does so based on the Ex Post Facto Clause
alone and "overrules" Hamdan II's statement that the 2006 Act itself
incorporates ex post facto principles. That seems to be a meaningless
exercise by the
majority opinion. Applying the canon of constitutional avoidance, Hamdan II
reasoned that the 2006 Act could not be applied to new offenses that were
not previously triable by military commission. Hamdan II was based on its
understanding of the limits of the Ex Post Facto Clause. Hamdan II indicated
that the 2006 Act allowed prosecutions of the listed offenses for pre-2006
conduct to the extent that the Ex Post Facto Clause allowed such
prosecutions. As the Court said, "Congress incorporated ex post facto
principles into the terms of" the Act. Hamdan II, 696 F.3d at 1248 (internal
quotation mark omitted). So whether we apply the Constitution to inform
interpretation of the statute or we apply the Constitution to limit the
statute, the question in this case is the same: What are the constraints
imposed by the Ex Post Facto Clause?[fn8]

On that question, my view is that the Ex Post Facto Clause bars
retroactive prosecution at Guantanamo of new offenses that were not
previously triable by military commission. But the majority opinion suggests
(although it does [**73] not definitively conclude) that the Ex Post Facto Clause
is less of a constraint on the Government and may allow
military commissions at Guantanamo to retroactively prosecute offenses that
were previously triable as federal crimes in Article III federal courts,
even if those offenses were not previously triable by military commission.

I am surprised by this rather aggressive suggestion about the meaning of
the Ex Post Facto Clause. After all, that position was not forcefully
advocated by the Government in its submission to the en banc Court, as the
argument appeared only in a short discussion late in its brief. In the
hour-long oral argument, moreover, the Government did not advance that
argument, and no Judge asked any question along those lines or suggested
this as a possible approach.

Moreover, like Judge Brown (as well as Judge Rogers), I too respectfully
have serious doubts about the majority opinion's suggestion that the Ex Post
Facto Clause may allow military commissions to retroactively prosecute
crimes that were previously triable as federal crimes in federal court even
when they were not previously triable by military commission. Can Congress,
consistent with the Ex Post Facto Clause, really just pull out the federal
[*78] criminal code and make offenses retroactively triable before military
commissions? I am aware of no commentator who has taken that position or
even analyzed the question. I have found no precedent taking that position
or analyzing the question. And even Congress, hardly in a passive mode when
it enacted the 2006 Act, did not go so far as the majority opinion about the
meaning of the Ex Post Facto Clause. The text of the 2006 Act reveals that
Congress thought there was no ex post facto problem because the listed
offenses were previously triable by military commission. See10 U.S.C. § 950p(a) (2006). If Congress had thought it enough that there
were some prior federal criminal statutes on the books, Congress no doubt
would have relied on that point to respond to the ex post facto concerns.
But as best as I can tell, no Member said as much. On the contrary, the text
of the Act itself demonstrates that Congress thought it necessary, in order
to overcome ex post facto objections, to show that the offenses had been
previously triable by military commission.

It is especially surprising for the majority opinion to take its doubly
aggressive approach – overruling one aspect of a precedent of this Court and
advancing a heretofore unheard-of view of the Ex Post Facto Clause's
application to military commissions – when it is unnecessary to do so here.
After all, in what it terms an "independent and alternative" holding, the
majority opinion says that plain error review applies and concludes that the
conspiracy conviction was not plain error because conspiracy at least
arguably was triable by military commission under Section 821 at the time of
Bahlul's conduct. The majority opinion notes, correctly, that it is
impossible to describe the Government's position on conspiracy and Section
821 as plain error [**74] when the issue remains open in the Supreme Court and
three Justices in Hamdan agreed with the Government's position. The majority
opinion could have said no more than what it says about Section 821 to
resolve the conspiracy ex post facto issue for purposes of Bahlul's appeal.

Second, from the other direction, I am also surprised by what the majority
opinion does not decide. We took this case en banc specifically to decide
whether, consistent with the Ex Post Facto Clause, a military commission
could try conspiracy for conduct that occurred before the 2006 Act. Yet the
majority opinion does not actually decide that question.

That is because the majority opinion applies the plain error standard of
review. The majority opinion thus does not
decide whether there was error in the conspiracy conviction; instead, it
decides only whether any alleged error was plain.

Like Judge Brown (as well as Judge Rogers), I too disagree with the
majority opinion's use of a plain error standard of review. To begin with,
Bahlul did not forfeit his ex post facto objection, so he is legally
entitled to de novo review of that issue and does not have to meet the high
bar of showing plain error. Bahlul raised an ex post facto issue when he
pled not guilty and, among other things, posed to the Military Judge a
"legal question": "Does the law here start from before, during, or after?"
Supp. App. 37; see id. (Bahlul asking whether "the law here" "stems from the
action, before action, or post action?").

But put that aside. Even if Bahlul did not expressly raise an ex post
facto objection at trial, the issue is not forfeitable under Rules 905 and
907 of the Rules of Military Commissions. Those Rules contain two exceptions
to the usual forfeiture rules for objections based on a "lack of
jurisdiction" or "failure of a charge to allege an offense." MANUAL FOR
MILITARY COMMISSIONS pt. II, at II-83-84 (2007); [*79]see id. at II-87; see also
MANUAL FOR MILITARY COMMISSIONS pt. II, at II-89-91, II-95 (2012). In this
case, each of those two exceptions applies. As the relevant statutes say on
their face, the question of whether conspiracy may be charged is
jurisdictional – whether the military commission had "jurisdiction" over the
offense. 10 U.S.C. § 948d(a) (2006) (military commissions have "jurisdiction
to try any offense made punishable by this chapter or the law of war")
(emphasis added); 10 U.S.C. § 821 (2000) ("provisions of this chapter
conferring jurisdiction upon courts-martial do not deprive military
commissions ... of concurrent jurisdiction with respect to offenders or
offenses that by statute or by the law of war may be tried by military
commissions") (emphases added).
Indeed, the Military Judge construed Bahlul's sometimes rambling comments as
an objection to the military commission's jurisdiction. See Supp. App. at
31-32.

And in any event, the question raised by Bahlul in this Court is surely
whether the conspiracy charge fails to "allege an offense," which is the
other kind of non-forfeitable objection under Rules 905 and 907.[fn9]
Although there is obviously scarce precedent interpreting the recently
promulgated Rules of Military Commissions [**75] with respect to a charge that
fails to state an offense, the same basic language is found in Federal Rule
of Criminal Procedure 12(b)(3)(B). That Criminal Rule provides an exception
to waiver or forfeiture in criminal cases for, among other things, a claim
that the indictment or information "fails to state an offense." Interpreting
that language, courts have determined that constitutional objections such as
Ex Post Facto Clause claims challenging the validity of the charge are
objections that the charge failed to state an offense – and thus may be
raised for the first time on appeal and reviewed de novo even if those
objections were not timely raised in the district court proceedings. SeeUnited States v. Haddock, 956 F.2d 1534, 1542 (10th Cir. 1992) (reviewing de
novo Ex Post Facto Clause challenge that was not raised prior to trial);
United States v. Gilbert, 813 F.2d 1523, 1528-29 (9th Cir. 1987)
(constitutional challenges attacking "the sufficiency of the information to
charge an offense ... may be raised for the
first time on appeal"); United States v. Seuss, 474 F.2d 385, 387 n.2 (1st
Cir. 1973) ("The defense of failure of an indictment to charge an offense
includes the claim that the statute apparently creating the offense is
unconstitutional. That objection may be raised for the first time on
appeal."); see also United States v. Al Hedaithy, 392 F.3d 580, 586 (3d Cir.
2004) (reviewing de novo Rule 12(b)(3)(B) objection that was not raised at
trial); United States v. Panarella, 277 F.3d 678, 682-86 (3d Cir. 2002)
(same); United States v. Maybee, No. 11-30006, [2011 BL 186348], 2011 WL 2784446, at *3 (W.D.
Ark. July 15, 2011) ("Courts have held that a claim that the indictment
fails to 'charge an offense' includes a claim that the statute creating the
offense is unconstitutional."), aff'd, 687 F.3d 1026 (8th Cir. 2012); UnitedStates v. Thomas, 534 F.Supp.2d 912, 915 (N.D. Iowa 2008) ("It is settled
that a claim that the indictment fails to state an offense under Rule
12(b)(3)(B) includes a claim that the statute creating the offense is
unconstitutional.") (internal quotation [*80] marks and ellipses omitted), aff'dsub nom. United States v. Howell, 552 F.3d 709 (8th Cir. 2009); MOORE'S
FEDERAL PRACTICE § 612.04 (Lexis 2014) ("The defense of failure to charge an
offense may be based on the absence of an essential element in the
indictment, indefiniteness of allegations, the lack of a statute creating
the crime, or the unconstitutionality of the statute relied upon.").[fn10]

Finally, even if the issue had been forfeited and plain error review
applied, the majority opinion still would possess discretion to decide the
ex post facto issue under the first prong of the plain error test as defined
by the Supreme Court and conclude that there was no "error" in the
conspiracy conviction. See United States v. Olano, 507 U.S. 725, 732 (1993).
The majority opinion should do so. Courts have an appropriate role in times
of war to decide certain justiciable disputes – but we should do so "with as
much clarity and expedition as possible." Kiyemba v. Obama, 561 F.3d 509,
522 (D.C. Cir. 2009) (Kavanaugh, J., concurring). The majority opinion's
failure to decide the ex post facto question with respect to conspiracy does
not comport with that principle, in my respectful view. Given the various
pending cases raising the same question and the need for guidance [**76] in those
wartime tribunals, I believe that the majority opinion should decide the
issue.

On top of not deciding how the ex post facto principle applies to
conspiracy trials before military commissions, the majority opinion also
does not decide Bahlul's Article I, jury trial, equal protection, or First
Amendment challenges, but rather sends those four issues back [*81] to a
three-judge panel for resolution. I also respectfully disagree with that
approach. The remaining issues are not that complicated; we have the
requisite briefing; and we could request supplemental briefing if need be.
Moreover, those issues are especially easy to decide on plain error review,
which after all is the standard of review that the majority opinion
indicates must be applied to those issues. Sending the case back to a
three-judge panel will delay final resolution of this case, likely until
some point in 2015, given the time it will take for a decision by the
three-judge panel and then resolution of any future petitions for panel
rehearing or rehearing en banc. Like Judge Brown, I believe that we should
resolve the case now, not send it back to the three-judge panel.

In short, I respectfully disagree with the majority opinion's addressing
the ex post facto issue in a way that does not actually decide the legal
issue with respect to conspiracy and provides little clarity or guidance on
that issue going forward, and also with its sending the other four issues
back to a three-judge panel. There is a time to avoid and a time to decide.
Now is the time to decide.

* * *

In sum, I would affirm Bahlul's conspiracy conviction, vacate the material
support for terrorism and solicitation convictions as ex post facto
violations, and remand to the U.S. Court of Military Commission Review for
it to address the consequences, if any, for Bahlul's life sentence.[fn11]

[EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.]

[fn1] So that there is no confusion as an historical matter and to be clear
about the legal implications of the majority opinion, it is important to
emphasize that the majority opinion's analysis and vacatur of Bahlul's
material support for terrorism conviction necessarily mean that Salim
Hamdan's material support for terrorism conviction likewise had to be
vacated, which is what the Hamdan II panel did. In other words, the majority
opinion relies on a slightly different rationale than did Hamdan II (the Ex
Post Facto Clause itself rather than the 2006 Act as informed by the Ex Post
Facto Clause), but the majority opinion reaches the same result: The offense
of material support for terrorism may not be tried by military commission
for conduct that occurred before the 2006 Act.

[fn2] The ongoing global war against al Qaeda and its associated forces is
overlapping but distinct, in law and in fact, from the war in Afghanistan
against the former Taliban regime and Taliban forces. The potential end of
the U.S. combat mission against Taliban forces in Afghanistan obviously does
not mean the end of the global war against al Qaeda and its associated
forces.

[fn3] As a general matter, the U.S. Constitution applies to U.S. citizens
worldwide and to non-U.S. citizens within the 50 states and the District of
Columbia, but not to non-U.S. citizens in foreign countries. See Zadvydas v.Davis, 533 U.S. 678, 693 (2001); United States v. Verdugo-Urquidez,
494 U.S. 259, 264-75 (1990); id. at 275-78 (Kennedy, J., concurring); Reidv. Covert, 354 U.S. 1, 5-14 (1957) (plurality opinion); Johnson v.Eisentrager, 339 U.S. 763, 768-85 (1950).

A more nuanced issue is the reach of the Constitution to nonU.S. citizens in
an in-between category: in territories owned or controlled by the United
States, such as Puerto Rico and Guam. Determining whether the Constitution
applies to non-U.S. citizens in U.S. territories requires a "functional"
rather than "formalistic" analysis of the particular constitutional
provision and the particular territory at issue. Boumediene v. Bush,
553 U.S. 723, 762, 764 (2008). The Court focuses on whether it would be
"impracticable and anomalous" to extend the constitutional guarantee in
question to non-U.S. citizens in the territory at issue. Id. at 759 (quoting
Reid v. Covert, 354 U.S. 1, 74 (1957) (Harlan, J., concurring)); see Balzacv. Porto Rico, 258 U.S. 298 (1922) (Puerto Rico); Dorr v. United States,
195 U.S. 138 (1904) (U.S.-occupied Philippines); Hawaii v. Mankichi,
190 U.S. 197 (1903) (pre-statehood Hawaii).

In Boumediene, the Court determined that Guantanamo was de facto U.S.
territory – akin to Puerto Rico, for example – and not foreign territory.
See553 U.S. at 769 ("In every practical sense Guantanamo is not abroad; it
is within the constant jurisdiction of the United States."); compareEisentrager, 339 U.S. at 777-81 (habeas corpus right does not extend to
U.S.-controlled military prison in post-World War II Germany); Al Maqaleh v.Hagel, 738 F.3d 312, 317 (D.C. Cir. 2013) (habeas corpus right does not
extend to U.S. military base in wartime Afghanistan). The Court then
determined that it would not be "impracticable or anomalous" to extend the
habeas corpus right to non-U.S. citizen detainees at Guantanamo. SeeBoumediene, 553 U.S. at 769-71. As the Government concedes, the Boumediene
analysis leads inexorably to the conclusion that the ex post facto right
applies at Guantanamo. It would be no more impracticable or anomalous to
apply the Article I, Section 9 ex post facto right at Guantanamo than it is
to apply the Article I, Section 9 habeas corpus right at Guantanamo.

[fn4] The precise text of Section 821 and its predecessor statutes has
varied slightly over time, but the anti-deprivation language has been
present in every iteration. See Pub. L. No. 64-242, 39 Stat. 619, 653 (1916)
("shall not be construed as depriving military commissions"); Pub. L. No.
66-242; 41 Stat. 759, 790 (1920) ("shall not be construed as depriving
military commissions"); Pub. L. No. 81-506, 64 Stat. 107, 115 (1950) ("shall
not be construed as depriving military commissions"); Pub. L. No. 84-1028,
70A Stat. 1, 44 (1956) ("do not deprive military commissions").

[fn5] A passage in this Court's decision in Hamdan II – a passage beginning
"Third," in the third-to-last paragraph of the opinion – suggested that the
phrase "law of war" in Section 821 encompassed offenses under the
international law of war but did not cover other offenses that were rooted
only in U.S. military commission precedents. See Hamdan v. United States,
696 F.3d 1238, 1252 (D.C. Cir. 2012) (Hamdan II). That statement was not
necessary to the result in Hamdan II because, as the opinion explained,
material support for terrorism was not an offense under the international
law of war or under U.S. military commission precedents. See id. In any
event, as the Deputy Solicitor General persuasively explained at oral
argument, see Tr. of Oral Arg. at 15-20, that statement in Hamdan II was
underinclusive. Given the text and textually stated purpose of Section 821,
and the relevant Supreme Court precedents, the "law of war" prong of Section
821 covers both offenses under the international law of war and offenses
sufficiently rooted in U.S. military commission precedents.

[fn6] It would be unconstitutional to apply any new offenses in the 2006 Act
to pre-2006 conduct. In light of the canon of constitutional avoidance and
Congress's express statement in the text of the 2006 Act that the law did
"not establish new crimes," but rather merely codified "offenses that have
traditionally been triable by military commissions," I read the 2006 Act
consistently with the Ex Post Facto Clause to authorize retroactive
prosecution only of offenses that were already prohibited as war crimes
triable by military commission under U.S. law at the time of the defendant's
conduct. 10 U.S.C. § 950p(a) (2006); see Hamdan v. United States,
696 F.3d 1238, 1247 (D.C. Cir. 2012) (Hamdan II); cf. Bond v. United States,
134 S.Ct. 2077, 2087-90 (2014); Northwest Austin Municipal Utility DistrictNumber One v. Holder, 557 U.S. 193, 205 (2009); Blodgett v. Holden,
275 U.S. 142, 148 (1927) (Holmes, J., concurring) ("as between two possible
interpretations of a statute, by one of which it would be unconstitutional
and by the other valid, our plain duty is to adopt that which will save the
Act."). The majority opinion disagrees that the 2006 Act can be read to
incorporate ex post facto principles, even in light of the constitutional
avoidance canon. I do not think the majority opinion is correct about that.
But that does not matter in this case. Whether it is because of the Act as
construed in light of the Ex Post Facto Clause or because of the Ex Post
Facto Clause itself (or both), military commissions at Guantanamo may not
prosecute any new offenses in the 2006 Act for pre-2006 conduct. The key
question is which offenses in the 2006 Act are new.

[fn7] For purposes of Bahlul's jury trial, equal protection, and First
Amendment arguments, I will assume for the sake of argument that those
constitutional protections apply to non-U.S.-citizens at Guantanamo. Seesupra note 3; Kiyemba v. Obama, 561 F.3d 509, 518 n.4 (D.C. Cir. 2009)
(Kavanaugh, J., concurring) (similarly assuming for sake of argument that
Due Process Clause applies to Guantanamo). Even so, as I will explain,
Bahlul's arguments are unavailing.

[fn8] Judge Henderson's concurrence, which speaks only for her, notes quite
correctly that the majority opinion today overrules Hamdan II's reliance on
the 2006 Act (as opposed to the Ex Post Facto Clause) as a basis for
concluding that material support for terrorism may not be tried by military
commission for conduct that occurred before the 2006 Act. What Judge
Henderson does not say in her concurrence is this indisputable fact: Based
on the Ex Post Facto Clause, the majority opinion today reaches the same
result as Hamdan II by concluding that material support for terrorism may
not be tried by military commission for conduct that occurred before the
2006 Act, which in turn means that Salim Hamdan's material support for
terrorism conviction was properly overturned by this Court in Hamdan II.

[fn9] Rules 905 and 907 are entitled "waiver" but those Rules, like the
other Rules of Military Commissions, use that term (imprecisely) to cover
both waived arguments and forfeited arguments. See MANUAL FOR MILITARY
COMMISSIONS pt. II, at II-83-84, II-87 (2007); MANUAL FOR MILITARY
COMMISSIONS pt. II, at II-89-91, II-95 (2012); see also Rules 920(f),
1005(f), 1106(e)(6), MANUAL FOR MILITARY COMMISSIONS pt. II, at II-115,
II-125, II-145 (2007).

[fn10] Notably, the Advisory Committee on the Federal Rules of Criminal
Procedure has recently recommended changing this aspect of Rule 12(b)(3)(B),
apparently because it is somewhat too lenient. Under the proposed change,
the argument that a charge failed to state an offense would no longer be an
exception to the usual rules governing waiver and forfeiture. In other
words, a defendant would no longer be able to raise an argument that the
charge failed to state an offense for the first time on appeal and still
receive de novo review of that claim. See SUMMARY OF THE REPORT OF THE
JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, Rules
Appendix C-15-C-26 (Sept. 2013). But that proposed rule change, which has
not yet taken effect, just highlights what the "fails to state an offense"
language means now in the Criminal Rules. And that is the same language that
the Rules of Military Commissions uses. Unless and until the Rules of
Military Commissions are likewise changed, therefore, an argument that a
military commission charge failed to state an offense – such as the Ex Post
Facto Clause argument here – may be raised for the first time on appeal and
receive de novo review.

[fn11] The Supreme Court in Quirin affirmed the Nazi saboteurs' convictions
and sentences on one charge and declined to review their convictions on the
remaining charges. See Ex parte Quirin, 317 U.S. 1, 46 (1942). That approach
reflected the practice at the time for American appellate review of criminal
convictions. The modern American appellate practice, however, is to address
each conviction separately in these circumstances. See Rutledge v. UnitedStates, 517 U.S. 292, 301-03 (1996); Ray v. United States, 481 U.S. 736,
736-37 (1987). Absent contrary indication, I assume that Congress intended
appellate review under the Military Commissions Acts of 2006 and 2009 to
proceed in the same manner as modern appellate review of multiple criminal
convictions. For that reason and because a sentence was not specified for
each individual offense in this case, I have addressed the material support
for terrorism and solicitation offenses as well as the conspiracy offense.